SALT LAKE CITY—Look out, busty teens in Utah: If you're standing on a street corner and your low-cut blouse shows a bit too much of your "female breast below the top of the areola," or you merely "touch [your] female breast," you just might be busted for "sexual solicitation"—but only if, in the opinion of the (potentially) arresting officer, the "totality of the existing circumstances" make you out to be a prostitute.
The problem is the amendments to Utah Criminal Code Sec. 76-10-1313, sponsored by House Minority Whip Jennifer Seelig (D-Salt Lake City), signed into law by Gov. Gary R. Herbert to take effect May 10, which adds several new "indicators" to the crime of "sexual solicitation"—pseudo-definitions which First Amendment attorney W. Andrew McCullough says were ruled unconstitutional back in 1988.
According to the complaint that McCullough filed on May 9, his client, Baby Dolls Escorts, under its corporate name, Bushco, won a state court case against the Utah State Tax Commission, where the court ruled that, "The escort service Plaintiffs are entitled to First Amendment protection because they incorporate dancing services; thus for purposes of these cross-motions [for Summary Judgment] all the Plaintiffs will be treated as if they are entitled to the same First Amendment protection."
With that ruling under his belt, McCullough and fellow attorneys Jerome Mooney and Steve Cook took on the government once again in '88, after the state legislature, the previous year, had amended the prostitution laws to include, under the definition of "sexual activity," "any touching of any person’s clothed or unclothed genitals, pubic area, buttocks, anus, or if the person is a female her breasts, alone or between members of the same or opposite sex, or between humans and animals, in an act of apparent or actual stimulation or gratification."
"This Court, in the case of Guinther v. Wilkinson ... held, in reference to that statute: 'that the underlined [above-quoted] portion of the statute violates the due process clause of the Fourteenth Amendment of the United States Constitution in two particulars, i.e. that it is overbroad, and that it is impermissively vague'," McCullough stated in the current complaint. [Citation removed]
"What they did this year was, they took much of the same language, but they didn't put it into the 'definitions' section in Sec. 1301; they added it to Section 1313, which is the 'sex solicitation' statute," McCullough told AVN. "And the sex solicitation statute was quite simple: Anyone who offers or agrees to a sex act for a fee is guilty. Now, with this new law, they can use some of the behaviors that they didn't get into the definition section several years ago as not 'definitions' so much but as 'indicators'."
"The problem is, what this law does is, it gives the police officer on the scene the discretion to decide for himself what he has seen and the interpretation of it," McCullough explained, "and even if they don't make the case for 'beyond a reasonable doubt' in front of the jury, the woman's been dragged through a court on a charge of prostitution. Do I think I can beat these guys in court on this? Yes. Am I going to have some clients threatening to slash their wrists first? Absolutely."
Rep. Seelig told a reporter for the Associated Press that the reason for revamping the statute was to target sex trafficking.
The intent is to target prostitutes, especially underage ones who are forced into the sex trade and trained to evade arrest, Seelig told AP reporter Josh Loftin. The arrest would be the first step in helping them get off the streets.
"Ah yes, the underage sex slave myth," analyzed First Amendment attorney Marc Randazza on his blog, The Legal Satyricon. "Every time you see a restriction on civil liberties pushed by someone with a religious or feminist agenda, you’ll find this bullshit at the bottom of the glass of Kool Aid they just asked you to drink."
But that explanation didn't ring true for McCullough either, since he'd already heard a different version from the Salt Lake City Chief of Police.
"The police chief says, 'I've got officers who go undercover looking for acts of prostitution, and girls are getting more sophisticated; they say to the guy, take your clothes off'—and by the way, his officers take their clothes off at the drop of a hat, and I had one officer tell me on the witness stand recently that he'd taken his clothes off with at least 100 girls, and I said, Where do I sign up?" McCullough recounted. "But at any rate, he says that—'and not only that, some of the girls are saying, touch yourself; get yourself hard; whatever, to show us you're not a police officer.' So he says we've got to do something to make it simpler, easier and less horrifying to catch these girls doing it."
"The problem is, the chief's got a six-man full-time vice squad, and they say they have reason to believe that everybody's up to this," he continued, "and I represent legally licensed escorts who strip and touch themselves and act sexy for a living, and they're licensed to do it. They don't necessarily have sex with the person they're stripping for; they're not licensed for that. But you now have a situation where the vice officers tell me I'm naïve to believe that any of my clients don't do it, and I'm saying that they're awfully cynical to believe that they all do."
McCullough noted that there's a simpler way to avoid all the legal strife surrounding the question of who's soliciting sex and who isn't: Get rid of the prostitution laws.
"Why don't we just legalize it and tax it and regulate it and leave it alone?" he asks. "I mean, a hundred miles to the west [across the Nevada state line], it's perfectly legal. And it's a little less than a two hour drive. If it's okay there, why isn't it okay here?"
