Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

Sex for sale. A Boston criminal lawyer’s view of prostitution and the new internet sex trade industry

The city of Boston used to have an area known as the “Combat Zone”. It was around the theatre district. In fact, the building that now houses the Department of Motor Vehicles used to be a store selling xxx-rated movies and books and prostitutes prowling the streets. That has all been “cleaned out” from the area the chase of crimes of morality is still on.

Chapter 272 of the Massachusetts General Laws deals with these so-called “CRIMES AGAINST CHASTITY, MORALITY, DECENCY AND GOOD ORDER“. Prepare yourself, though, before you read it. For example, “fornication”, otherwise known as sexual intercourse between two unmarried consenting adults, is still on the books as illegal and punishable by jail time. Adultery is still a crime which can send a defendant away for two years and this law has been upheld as Constitutional by the Supreme Judicial Court as late as 1983!

Blasphemy, however, is only punishable for one year incarceration, so we may be lightening up after all.

Not too many criminal defense attorneys are called upon to defend charges of fornication, adultery or even blasphemy these days. However, the laws surrounding the sex trade have undergone changes. These changes are not in attitude, but in application. For example, today, particularly with the internet, the trade has moved onto other venues.

Law enforcement remains in hot pursuit.

The Boston Criminal Lawyer Blog has discussed a number of news stories involving sting operations focused on arresting prostitutes and their clientele over the past several months. Interestingly, this has been the case even as one of the chief complaints against prostitution has been removed.

One of the chief complaints against prostitution had been the “element” it brings to a given neighborhood. For decades, parents worried about the influence on their children as this sordid interaction played out on their streets. Well, now, it would appear that much of said traffic is off the streets and onto the internet…mainly internet advertisements on things such as Craig’s List. However, law enforcement has continued the chase onto the net. Most of these ads talk about massages.

“But wait, Sam”, you shrug and sneer at the computer screen. “You’re telling me it is illegal for me to get a massage?”

Well, actually, no. Basically. But this is where things tend to get a bit confusing. For example, most of these investigations center “erotic massages”. Wonderful. So what does that mean? In the days of, at the very least, suggestive advertising being the norm with regard to almost any product, where is the line? Where is the line between the touch and no touch zones?

Well, the theory under which these prosecutions take place is obviously that they are a disguised prostitution operation. So, let’s start with that. What is prostitution?
Under Massachusetts law, “Whoever engages, agrees to engage, or offers to engage in sexual conduct with another person in return for a fee, or whoever pays, agrees to pay, or offers to pay another person to engage in sexual conduct, or to agree to engage in sexual conduct with another natural person…” is guilty of prostitution, even if the deal is never carried to fulfillment. You can find the definition here.

Ok, that’s a start. Now, what is “sexual conduct”? Is a simple massage sexual? What if it includes massaging groin muscles? What if there is soft music involved? Years ago, a United States Supreme Court Judge tried to define pornography by saying that he knew it when he saw it. Is that the same kind of test?

As with most questions in the criminal justice system, the answer is “yes” and “no”.

I think that we can all agree that, under the law, oral sex, anal sex and sexual intercourse for a fee is considered prostitution. But, what about phone sex? What about selling adult books and videos? How about showing xxx movies?

And what about role playing? Is a dominatrix simply a more specialized prostitute? What if genitals are not even involved? How about sex therapy?

“Don’t be dense, Sam”, you tell me. “The test must be whether it brings sexual excitement to the customer.” Ok, and let’s assume that “sexual excitement” means the condition of human male or female genitals when in a state of sexual stimulation or arousal, as defined by various laws. I would assume, then, that this means the dominatrix. But then, it also should mean most advertising agencies as well as the sellers of adult videos as well as phone sex or anyone else in the adult entertainment industry.

But that is not the state of the law.

The fact is that breaking down these legal definitions and trying to truly understand the applicability to various activities and livelihoods is enough to make one’s head hurt. Now, add to that the fact that, sometimes, surrounding circumstances can seem to make illegal acts legal. Take, for example, our posting from yesterday, wherein the Defendant was being prosecuted for blackmailing her previous John.

Normally, the customer of a prostitute is prosecuted just as the is the service provider. However, there has apparently been no prosecution for either John or the Defendant for the actual admitted prostitution. Law enforcement regularly publishes names of prostitution clients to embarrass them and scare them away from the sex trade. Yet, she is being prosecuted for threatening to do just that. In fact, to keep herself out of jail, the court is insisting that she keep the identity quiet.

So, what is the difference?

The difference is that she crossed the line and resorted to blackmail. In this case, what one normally considers a risk of engaging the services of a prostitute or escort is being forbidden because the Defendant was demanding money for her silence.

I have handled many prostitution cases as well as other cases in which the Commonwealth’s witness is a prostitute. At times, it brings confusion into the courtroom. Once, I was defending a man accused of raping a prostitute. A superior court judge actually looked up and asked whether it was possible to actually rape a prostitute. He wondered if it should be considered a contractual dispute.

The fact is, of course anyone can be a victim, so of course that complainant could make a complaint for rape. The Commonwealth’s case, though, was that she was attacked while looking for customers.

Was she prosecuted for her admitted crimes? No.

Routinely in the criminal justice system, the rules around some crimes appear to change depending on the case. Therefore, what you may be prosecuted for today may not be a problem for you tomorrow.

This is particularly true in cases like prostitution.

So, in sum, we have seen that sexually-related activities for a fee are illegal…except when they are not. One of the main concerns about prostitution is that it is open and on the streets…except it is chased even when it is off the streets. Finally, even clearly illegal conduct in the sex trade can be forgiven if there are “bigger fish to fry”.

Now, you might get the idea that, especially given that these prosecutions are inconsistent, being prosecuted for the activities is no big deal.

And, you would be wrong.

Other than the fact that being a customer or provider of prostitution being punishable by jail time, there are other far-reaching consequences which can greatly impact your life.

For example, if you have a career of prominence or involving children, such as a teacher, a counselor, or even a politician, the revelation of being on either side of the sex-for-money exchange can mean the end of that career. Take, for example, New York politician Elliot Spitzer.

Next, let’s say you have children. Particularly in the case of the sex worker, revelation of your profession could mean the loss of child custody.

Of course, if you are married and are on either side of the transaction, the marriage could be in danger. If you are already divorcing, it can make a messy situation a great deal messier.

So, if this feature-length “Attorney Sam’s Take” tells you anything, it is to remind you that the rules of “Common Sense” are not the same as the Rules of Criminal Procedure. You cannot take the way the Commonwealth will handle a case for granted.

It is critical in these cases to engage the services of an experienced defense attorney at the first sign of an investigation or accusation. An experienced attorney generally has developed a “sixth sense” for how things are going and that sense often outweighs any sense of logic .

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