Jury in NY says Money for Time is not prostitution even if sex is intended

February, 2009
Jury in NY says Money for Time is not prostitution even if sex is intended
Jury unanimous acquittal in the Big Apple Case (BA)
In my view it is similar to escorts in the U.S. Money for Time is not prostitution per jury.

Background reminders - In the Philippines "bargirls" are available for "take out" There is a very clear expectation of sex, but they are paid for their time when bar fined to go to a customers hotel room usually for the night. Prostitution is illegal in the Philippines and New York was prosecuting the owners of BA. New York lost a couple times in lower Courts but the State of New York appealed. At the Appellate Court, they sent the case back for retrial where a jury found them innocent.

BUT THIS IS IMPORTANT FOR U.S. Escort Defenses:

One of the jurors wrote the following and he very closely to what Norman wrote (below) . The whole trial was audiotapes where the BA owners talked abut having sex with women while on vacation. The intent to have sex was clear but the jury found that you need more than intent you have to have the completion of a deal to provide sexual conduct for a fee. Intent is always vague unless followed up by facts of evidence.

Juror Number 4

MaQUana wrote:

I was on this jury and we had to acquit. And prostitution is illegal in the Philippines. That's the only reason we had jurisdiction, however there is this system and the girls are licensed entertainers and men pay the bar $20 in order to take the girl on a date. They are paying the bar for the girl's time. And the main reason we had to say not guilty is because the Attorney General's office was not smart enough to call the Philippines once in this investigation. Also Doug Allen said about 20 names and the investigator didn't try to find one of them. It was a huge waste of taxpayer's money for men who faced less than a year in jail. I spent 2 weeks sitting through this garbage because the AG's office couldn't let a case that Judge Hayes dumped twice just be dumped. It really was a horrible example of the failings in our judicial system. Is is clear these guys are lowlifes, yes, but unfortunately not guilty, and it would have been easy to do so. Tsk tsk attorney general.
1/27/2009 10:23:04 AM

This is for your information and publication if you wish.

Dave notes:

The AG's office could not find anyone who would testify they were paid for sex since the barfine system that is used never does pay for sex only her time and a fine to the bar to "take her out". Not for sex, even though that is the usual result between two consenting adults for no specific fee.
"licensed entertainers"... could be in the U.S. or Phoenix where escort licenses are often required, "licensed escorts." But more clear issue is money for time not sex is not prostitution according to this jury.

Dear Dave:
Last week we held a number of conversations with the people who have a been part of our case from the beginning. My partner has summed up those comments and gives his analysis of the current situation. My partner sage comments are:

In all the back and forth over the last week, one of the most significant consequences of our victory was scarcely mentioned. After about three hours of jury deliberations, the jurors (pinpointed to a man on the panel) submitted three questions for Judge Hayes concerning the applicable law. The most important of them was whether or not we could be convicted of promoting prostitution if they could find no evidence of prostitution actually occurring. Judge Hayes reconvened the court and told the jurors that prostitution (money for sex not for time) must be proven beyond a reasonable doubt. Less than an hour later, the jury found us not guilty.

This came after more than a week of the prosecution bombarding the court with audio and video tapes purporting to prove that prostitution has been an ongoing activity in Angeles City thanks to the barfine system. In defining the law for the jurors, Judge Hayes quoted Penal Law Section 230 as declaring that prostitution is the exchange of sexual conduct for a fee.

In finding us not guilty, the jury effectively held that the barfine does not pay for sexual conduct, but merely to remove an employee from the premises of the bar she works for, for a specified period of time whether there is sexual conduct or not.

The prosecutor had argued that any negotiations between the woman and her customer over sexual conduct prior to his paying the barfine revealed the intent to engage in prostitution. The jury did not buy that. We could have argued further that time and companionship are not among the definitions of sexual conduct within the Penal Law, but our lawyers were squeamish about going there.

The implications of the jury's verdict are profound. It effectively legalizes escort services and freelance escorts who charge by the hour but not for the actual acts, porno movie producers who pay the actors to perform according to a script that includes acts of sexual conduct, even massage parlors and S & M clubs that charge an all-inclusive one-price admission at the door while eschewing additional "happy ending" charges which are clearly illegal. No wonder the state Attorney General's Office has hushed up the verdict until now and ordered the Equality Now people to keep their big mouths shut.
Norman

Note: It is going to be interesting to see what (is published) in the Law Journal as the review of our case.. That won't be out for several months yet.

We are watching Equality Now's website for comments about our case. In November 2008 they were demanding letters be written to Andrew Cuomo encouraging him to prosecute this case. Now that they have lost I bet we get the silent treatment.

Sincerely,
Douglas Allen

Paying for Time "Legal Even Though Sexual Conduct is Likely to Occur?"

Is it similar to how Restaurants avoid Liquor License laws?
Some escort agencies and independent companions get busted others don't yet they all sell the same thing; time and companionship. Is that legal? Neither product is sexual conduct so it has to be legal? If purchasing time to go have consensual sex is illegal then more than Jeane Palfrey and Jenny Paulino are guilty. What does the money pay for? It has to pay for sexual conduct to be illegal. See US V. Jones 909, where a dispatcher and seven escorts won and appeal in Federal Court. They had been convicted of Travel Act (Interstate Transportation in Aid of Racketeering Enterprise - ITAR or Travel Act) and Mann Act violations on a vague notion that prostitution was occurring. The Appellate Court said, "no." You have to have proof that sexual conduct was been bought or sold or at least offered for a fee. The Fed Prosecutors could not do that. The only thing they could prove was that money was being spent for some period of time for some companionship. Usually on hour but sometimes longer. What ever they do or did behind closed doors is up to them or is it?

Palfrey is also using this argument cited the Jones case in addition to her constitutional argument under Lawrence vs Texas. Her June 15, 2007 Motion to dismiss count 2 is quite interesting at http://deborahjeanepalfrey.com/download/count2.pdf

Up until now I totally agreed the "just for time not for sex" disclaimers were worthless that it would be if a reasonable person would assume there was an expectation of sex as part of the fee. But I now see the argument as what was actually paid for. If you pay for time but also expect sex, your still paying for time not sex is the argument. Legal issues rely on such fine points in definitions. And there is some support for that in seems in United States v. Jones, 909 F.2d 533. At least the defense is being tried along with the constitutional defense of prostitution in a case with good attorneys making the fight.

The phone operators convictions were reversed since the mere "inducement" for sex was not enough to have a conviction at least under the Mann Act. The Travel Act is more complex and may have been reversed more on bad jury instructions since under the Travel Act intent can be a valid criminal act it seems. Is the escort agency case like the restaurant avoiding having to have a liquor license (see argument below)? Was money paid for the sex or for the time is the issue with escorts.

It would certainly be a whole lot simpler and not waste all these attorney fees and Courts time if private prostitution was simply decriminalized as in most of the world with no significant negative effects.

May be comparable to restaurants avoiding liquor license problem
In response to my post Ryver writes:

Around here (Philadelphia, PA), many restaurants that do not have a liquor license serve meals with multiple courses for a per-person set price and serve wine and liquor as "complimentary" along with the paid-for meals. Others have everything prices separately but still serve "complimentary" wine and liquor with whatever you order. I believe this is a common practice in many establishments that do not have such licenses to sell alcoholic beverages instead of being strictly BYOB.

Now, it's well known when you go there for dinner, you will be served alcohol and of course you realize on an unspoken level that you are paying for it somewhere in the cost of your food but legally you are only paying for food and the establishment is not violating liquor laws since they are not selling alcohol without a license.

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Similar issue in Canada - Is a release an adult body rub "sex" so it would violate the bawdy house law (outcall 100% legal in Canada as in most of the world except the U.S.)

Parlour's 'manual release' ruled legal
Charges thrown out in masturbation case
Do you just pay for massage and "manual release" simply optional no fee addition
Argument of course is similar in the U.S. including for time paid for an escort
A Canadian judge rules it wasn't sex

Some cities like Vaughan (suburb of Toronto) are going after unlicensed body rub parlors under the rarely enforced bawdy house law that makes incall prostitution illegal, while outcall has always been legal.

Justice Howard Chisvin, of the Ontario Court of Justice, dismissed two bawdy house charges against a body rub manager saying: "The payment of money was for a full-body massage. The act of masturbation was optional, at no additional fee. I wonder, and am left in doubt as to whether or not the community might consider the act of masturbation in all situations to be sexual."

The judge then made a reference to Clinton's liaison with the intern. "One only needs to look to the conduct of a certain president of the United States and ... the activity that he participated in to wonder whether or not the act of masturbation is indeed, in all circumstances, a sexual act."

Will the judge's ruling open the flood gates for more "happy endings" at rub and tugs without fear of police prosecution? Lawyer Alan Gold says it's too early to tell. But he said he believed the judgment to be unprecedented and said it will be in the next issue of his Criminal Law Netletter, a collection of "novel and important" cases.

In his ruling, Chisvin was critical of the undercover York Regional police officer in the case. The court heard how the officer stripped naked, lay first on his stomach and then flipped over for the female attendant, stopping her when she put her oiled-up hands on his penis.

He went to the massage parlour again, going through the drill with another attendant. "It strikes me that his actions were not only unnecessary but outside a protocol of investigative techniques of offences of this nature and bordered on no more than attending for self-gratification."

Source: http://www.thestar.com/article/255176 from 9/11/2007

Good comments:

Kinda like McDonald's offering free smiles with your meal. You dint pay for it, didn't ask for it, but it was nice to get and you'll probably go back since they made you feel special.

Unless it's challenged in appeals court, it becomes legal precedent. The judge has defined that a HJ in itself is not prostitution if no dealing took place, and that it wasn't an indecent act that would have made the place a common bawdy house. Lets hope that, in the future, the justice system spends its time prosecuting real crime, instead of stimulation between consenting adults.

I prefer to have my penis massaged by a vagina. Now THAT's a full body massage *g*