Legal Status of Bar Fines in Philippines - BAO Wins Case in NY

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. 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.

The case was finally won at trial where the jury ruled that paying for time is not prostitution when there is no explicit payment for sex. This is a great win and sets the foundation for later cases in the U.S., but also mixed in with this case was whether they were in violation of the Philippines prostitution law.

I have written extensively on the case related to the U.S. situation but it is also interesting how it ties into the law in the Philippines.

There was great political pressure from the major "womens" groups like Equality Now, that believe all paid sex is trafficking of poor abused women and that no women in their right mind goes into sexwork unless out of desperation or forced by big bad men. Basically they argue that all sexworkers are brainless and have no ability to choose such a horrid degrading profession. Therefore they must be protected from themselves and the bad men that abuse them. They did a huge public relations campaign to get BAO tours convicted.

Even BAO's attorneys were against the defense that it is only prostitution if you pay for sex, not just time. But BAO insisted they use that defense which resulted in their not guilty jury verdict. For those not familiar with PI you usually pay a bar fine to a bar and a fee to the girl for "take out". Bar girls are licensed "Guest Relations Officers – how creative!). or GRO's and are required to have frequent STD tests, but prostitution is illegal in PI. I have an extensive old trip report going into details in the link in this message.

In the BAO case, the prosecution had to prove a violation of Philippine Law 202 which is a vagrancy law with prostitution in it. That means the prosecution has to prove that the women the men met are in violation of Philippine prostitution laws and there is a Nexus between the prostitutes and BAO Tours. That is rather difficult for the prosecution to do as the women  have a GRO license and operate legally as adult entertainers under city laws.  Street walkers are prostitutes that are unlicensed and unregulated. The women  men mingle with have a license and are legal so New York State cannot prosecute us under NYS CPL 20.30 which requires that the crime be a crime in both jurisdictions. Surprise it is a legal activity in both jurisdictions and no crime at all. .

Details from BAO owners - all with their permission to share to educate about their case to help others:

I had a couple of wicked arguments with my own lawyers and at one time I had five public defenders, some with over 20 years of experience, telling me I was "blowing smoke." When I looked them in the eye and said I am correct prove me wrong they through up their hands and their eyes roll up to the ceiling and then they fled from the area.

The jury was forced to acquit us when the State failed to prove beyond a doubt that any penetration sex was involved for a fee. Yes, there was lots of sex going on all over the place, legally, but only the time was purchased. In effect this case legalizes Escort service and escorts. Prove us wrong we won in court.

One of the most serious issues that we failed to make in the opening arguments was the issue of local law vs national law. Big Apple has always acknowledged that prostitution is illegal in the Philippines nationally and said so in the tape recordings being used as evidence. However we operate under the rules of Local City Ordinances (i.e.. Angeles City) not Nation Law 202. The prosecution has to prove that national law 202 was violated and explain that local ordinances are not legal or do not have a part in this prosecution. This is a tall order. National Law 202 is full of vague and unconstitutional words that are useless in our courts. Two are key “habitual behavior” which was removed from out legal system fifty years ago and the word indulge which is very unclear as to what it means in legal terms.

So far there has been no mention of vagrancy in the proceedings. Vagrancy is a critical portion of the Prostitution Law 202. The jury has not been told anything about “habitual” or “vagrancy” so they don't have a clue about Philippine Law or why NYS CPL 20.30 is so important. I feel this was a serious weakness in the opening presentation by our lawyers as this could have been framed so that the jury would be looking at what the prosecution is saying with skepticism.

Does the Bar Fine violate New York State Law 230 as sexual conduct is never purchased or sold? It is not even offered.

Does the Bar Fine violate Philippine Nation Law Article 202 which puts prostitution as part of a law on vagrancy?

Does the Bar Fine violate local ordinances? Yes, in Ermita and other places there is no bar fine. Angeles City outlawed the bar fine in 1995 but never stopped issuing the licenses. The bar fine was illegal in Olongapo under Major Kate Gordon but has been reinstated by the new major, Bong Gordon. The Bar Fine is at the discretion of the Major. See Harry the Horse article February 2003.

The jury should have been told about Philippine Law 202 and what to listen for on the audio tapes so that they could look for violations or not. Instead they were told nothing and are sitting there like bumps on a log wasting everybody’s time.

So far on the Audio Tapes the jury has been told that the women are licensed and legal several times. The jury has heard the difference between the women on the streets and the women working in the clubs from our testimony but not from the prosecution. Unless I missed something none of the conversations has mentioned anything that is illegal to sell to a customer. I was not selling an illegal product like cocaine or illegal gambling. I was selling the legal product of adult entertainment.

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

More on the Jury unanimous acquittal in the Big Apple Case
In my view it is similar to escorts in the U.S. Money for Time is not prostitution per jury.

Juror Number 4 MaQUana wrote after the trial:
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: "licensed entertainers"... could be in the U.S. or Phoenix where escort licenses 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 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.

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.

Douglas Allen
BAO Tours

MORE Details of the trial and PI law from Douglas Allen: (Dan and Jim the two defense lawyers)
The prosecutor has made at least two statements that need to be addressed. First, he made a big deal about the Bar Fine being a date for 24 hours and then claimed the prostitute get beaten up or punished if she comes home early. That was a flat out lie unless he can produce somebody that had that happen to her that was also connected to Big Apple. Second he claimed that the GRO's go out on a average of 15 dates a month and that is an example of "habitual behavior" under Philippine law. We can not allow the prosecutor to create his own interpretation of Philippine law. Once a person is employed by a bar as a GRO she is hired to go out with customers as a companion she is never guilty of "habitual behavior" as she is operating under the terms and conditions of her employment and that is never "habitual."

Habitual was a word in our legal system that has been removed because the Supreme Court ruled it was a vague and unconstitutional word that is all but impossible to prove in court. New York removed the word the Philippines did not. The term is unconstitutional in our courts.

So far we have listened to hours of Audio tapes of my conversations with the undercover detective and I have not heard a word that can convict us. The judge is bored the Jury falls asleep. HO HUM, maybe next week we will have some action.

 In the Philippines prostitutes are vagrants, people with no visible means of support, homeless, loiters hanging around public building for no apparent lawful purpose. The prosecution has to be pinned down to that definition of Philippine law because none of it applies to us. If a person has a visible means of support and not hanging around anywhere and is not homeless then there is no prostitution. Vagrancy has to be proved first before prostitution can be proved. Our people all have jobs and are licensed as employees. They cannot engage in "habitual behavior" as their behavior is required as terms and conditions of their job. That is why the bar fine system is so great. They never license an individuals or freelancers. You have to have a job to avoid Law 202. Then they license them because the club they work for is licensed. All GRO's are paid a weekly salary and get commissions and tips for a known income. The license is not portable as a licensed worker is not licensed as soon as she leaves the club property. This makes street walkers unlicensed and unregulated and illegal under Nation Law 202 while a GRO is licensed and legal under the same law. We have nothing to do with streetwalkers that are illegal in both jurisdictions. We operate legally and above the law.