Let me be clear from the outset: this is
not an important legal decision. It's only being discussed at all because of its tawdry and notorious elements, but I think there's actually a valuable lesson or two about legal interpretation here.
It's October 2009, and the Philadelphia Phillies are back in the World Series for a second straight season. Susan Finkelstein, a mid-40s graduate of, um, my high school, wants tickets. So she posts an ad on Craigslist:
“Diehard Phillies fan—gorgeous tall buxom blonde—in desperate need of two World Series tickets. Price negotiable—I’m the creative type! Maybe we can help each other!”
Sergeant Robert Bugsch with the suburban Bensalem Township Police Department sees the ad (as part of a general scan for prostitution offers) and asks Finkelstein to send a picture. She sends a few topless photos, and an email exchange ensued, including:
[Finkelstein]: well how do you want to go about this? Do you want to meet for drinks one day after work and negotiate?
[Sergeant Bugsch]: Yes, but why drinks? I like some powder, if you got it.
[Finkelstein]: You and me, both. I don’t have any of that. I wish.
Bugsch invited her to a Bensalem bar next to a movie theater where I bring my kids ("wear something SEXY, I will be wearing a PENN STATE Jacket, I have blond hair") -- and as the trial court recounted, here's what happened there:
She told the officer that she was willing to have sex for the tickets, including anal sex, and that she would do anything for a second ticket, including having sex with the officer’s brother, in exchange for his second ticket or having sex with both of them simultaneously. Defendant then proposed going to the brother’s house, where the exchange could occur. Defendant punctuated the proposal by spreading her legs, allowing [Sergeant Bugsch] to look under her skirt, where she was not wearing underwear. She then asked the officer “if he wants to touch it.”
[Sergeant Bugsch] told Defendant to wait while he called his brother to see if he was interested. Instead, he contacted the other observing officers, who then arrested Defendant for prostitution.
Yeah. The whole team was there. Bensalem isn't exactly the most exciting town in America.
Finkelstein was acquitted by a jury on charges of prostitution, but convicted on a charge of attempted prostitution, sentenced to a year's probation, court costs, and 100 hours of community service. She appealed, saying there is no such thing as attempted prostitution under Pennsylvania law.
So let's start with the statute, which reads:
§ 5902. Prostitution and related offenses
(a) Prostitution.―A person is guilty of prostitution if he or she:
(1) is an inmate of a house of prostitution or otherwise engages in sexual activity as a business; or
(2) loiters in or within view of any public place for the purpose of being hired to engage in sexual activity.
And what's "attempted prostitution"? Well, an attempt, under the law, is "when, with intent to commit a specific crime, [a person] does any act which constitutes a substantial step toward the commission of that crime." (Under prostitution law, the offer is sufficient to constitute the actual offense; a police officer doesn't have to have sex with the target before arresting her.)
What a unanimous Pennsylvania Superior Court panel held, therefore, is that if what you're doing doesn't count as prostitution in the first place -- per the jury's verdict -- then you can't have taken any of those substantial steps, by definition.
And that's lesson #1 of the day: statutes matter. Read it again: it requires that the accused "engages in sexual activity as a business." That's different from other state statutes. Under California's penal code, it requires that one "engage in sexual conduct for money or other consideration," unless it's as part of a show. In New Jersey, similarly, it's "sexual activity with another person in exchange for something of economic value, or the offer or acceptance of an offer to engage in sexual activity in exchange for something of economic value."
But in Pennsylvania, it has to be "as a business," and as the Court explains -- this difference matters.
We have recognized accordingly that “the gravamen of the offense is not the sexual activity itself but the business of engaging in such activity for hire.” Commonwealth v. Danko, 421 A.2d 1165, 1170 (Pa. Super. 1980). Thus, neither promiscuity and its moral implications, nor the sex act itself offer grounds for arrest and conviction.
In other words: Pennsylvania's lawmakers aren't interested in shutting down promiscuity
per se, but rather the harms which would befall the Commonwealth by
commercializing the sex trade:
Among the reasons for undertaking to repress prostitution, the danger of spreading disease is the only one applicable to noncommercial promiscuity. Even on this score, non-commercial “promiscuity” appears to be less dangerous than commercial
prostitution. Non-commercial prostitution involves indiscriminate acceptance of new sexual partners from time to time, but not intercourse with dozens of strangers daily. In any event, the health menace involved in amateur promiscuity seems to call for educational and medical remedies rather than penal law. The more serious dangers of professional vice are absent: necessity and means to corrupt law enforcement; incentive to coerce and exploit women; maintenance of criminal organizations and parasitic elements living on the proceeds of prostitution and therefore committed to promote the activity by finding new customers and new women to serve them.
So, explains the Court, it's okay to
occasionally decide to exchange somethin' for somethin' -- that's none of the Commonwealth's business:
Another effect of requiring promiscuity as well as hire would be to exclude cases where a girl not generally engaged in commercial activity nevertheless consents to have intercourse on a particular occasion in exchange for a promised reward. Again this seems to fall outside the defined objective of the present Section and to impinge on our decision elsewhere that criminal law is not a useful or safe form of regulating private illicit sexual relations.
So, as the Court concludes: "Indeed, Susan Finkelstein appears as the embodiment of 'a girl not generally engaged in commercial activity [who] nevertheless consents to have intercourse on a particular occasion in exchange for a promised reward.'"
Hence, sentence overturned, conviction expunged, and anyone else who wants to try to exchange sex-for-tickets (or anything else) on a one-time or infrequent basis, go for it, I guess. Just don't make a business out of it.
Which leads to lesson #2: when the police go overboard, don't be surprised if judges go out of their way to undermine them.
Really, think about this case for a second. Susan Finkelstein didn't live in Bensalem, but about forty-five minutes away. The only reason there was any potential prostitution going on at the Neshaminy Mall that night was because the police officer summoned Finkelstein there in the hopes that she would commit the offense. In other words, an overly exuberant -- or bored -- or horny police officer, scans Craigslist, starts flirting with Finkelstein, believes that he's got a potential prostitution offense (and tries to upgrade it to drug-dealing as well), and brings more potential crime (which wasn't a crime) into his jurisdiction than would have existed he just done nothing. And, in the meantime, Finkelstein lost her job because of the arrest. You can understand why a judge might not look kindly upon such tactics.
But, and here's lesson #3, was this entrapment, you're wondering? No. See lesson #1. Under Pennsylvania law:
(a) General rule.--A public law enforcement official or a person acting in cooperation with such an official perpetrates an entrapment if for the purpose of obtaining evidence of the commission of an offense, he induces or encourages another person to engage in conduct constituting such offense by either:
(1) making knowingly false representations designed to induce the belief that such conduct is not prohibited; or
(2) employing methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it.
So I don't think it fits.
The Bucks County District Attorney has not decided whether to appeal this decision to the Supreme Court of Pennsylvania.