Advertising Sex for World Series Tickets Is Not Attempted Prostitution

So holds Commonwealth v. Finkelstein (Pa. Super. Ct. Dec. 20, 2011). Finkelstein put out a CraigsList ad that, coupled with the post-ad discussion at an in-person meeting, suggested that she was willing to trade sex for a World Series ticket. The prospective buyer (or is it seller?) turned out to be an undercover policeman, so Finkelstein was prosecuted for attempted prostitution. But the relevant provision of state law criminalized “engag[ing] in sexual activity as a business,” and the question was whether this qualified. No, said the court; here’s an excerpt:

“[T]he 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. The commentary to the Model Penal Code, which this Court cited with approval in Danko, elaborates — and limits — the concerns at issue in the statutory prohibition of prostitution.

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.

It should be noted also that a law punishing promiscuous, but non-commercial, sex activity would reach all males who seek sexual gratification indiscriminately, whether with professional prostitutes or amateur partners….

A case might be made for limiting the offense of prostitution to “promiscuous” sexual activity for hire. Requiring promiscuity as well as hire would, for example, bar prosecution of a mistress who is supported by her lover. Such situations fall somewhat outside the target evils of our Section, but the “hire” requirement itself is probably a sufficient safeguard, since the lover’s financial contributions in these relationships are more likely to be interpreted as gifts out of general affection rather than “hire” for sexual activity. 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.

Danko, 421 A.2d at 1169-70 (emphasis added).

As the foregoing commentary recognizes, the legislative objective in prohibiting prostitution is not to criminalize “private illicit sexual relations,” but rather to curtail the deleterious effect of an open commercial sex trade on public health and law enforcement, as well as to avoid the exploitation of women. None of the evidence in this case implicates these concerns and Finkelstein’s conduct did not exceed the ambit of “private illicit sexual relations.” 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.” Under these circumstances, we conclude [that] Susan Finkelstein’s conviction of Attempt exceeds the lawful scope of our statutory prohibition of Prostitution and cannot be sustained.

Note: Please don’t use the comments to this post to generally discuss whether prostitution should be decriminalized. That’s an interesting question, but I have posted a separate item that you can use to discuss it.

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