Escorts Challenge Sex Solicitation Law

SALT LAKE CITY (CN) - Two licensed escort agencies sued Utah and Salt Lake City's police chief, challenging a new law that redefined sex solicitation. The "sexually oriented businesses" - which refer to themselves in the complaint as SOBs - say the law, which took effect Tuesday, May 10, violates the First Amendment and is "unrelated to any legitimate state interest."

Bushco dba Babydolls Escorts, and Companions LLC sued the attorney general and Salt Lake police chief in Federal Court. The Utah Legislature passed the law, HB 121, in March.

Titled "Sex Solicitation Amendments," the law broadens what activities constitute an intent to buy or sell sex.

Salt Lake Police Chief Chris Burbank said HB 121 will help undercover officers crack down on savvy prostitutes who ask them to expose body parts or identify themselves as law enforcement officers during stings.

Under the law, a person may be arrested for soliciting sex if police believe the person has an "'intent to engage in sexual activity for a fee' and that person exposes that 'person's genitals, the buttocks, the anus, the public area or the female breast below the top of the areola'" or touches his or her own similar parts.

The "intent to engage in sexual activity for a fee may be inferred from 'a person's engaging in, offering to engage in, or requesting another to engage in any of the acts described' above 'under the totality of the existing circumstances,'" the complaint states.

Prostitutes regularly ask johns to expose themselves, to try to sniff out plainclothes officers, Burbank said, in pressing for passage of the law.

Previously, "sex solicitation" occurred when someone "offers or agrees to commit any sexual activity with another for a fee."

In 1987, a Utah law redefining "sexual activity" for prostitution and purposes of sex solicitation was deemed unconstitutional for violating the 14th Amendment's guarantee of due process. That bill identified as sex masturbation, sexual intercourse, touching of virtually any area of the body or contact "between humans and animals," but was found to be overly broad and impermissibly vague.

Babydolls and its co-plaintiff SOB claim that the new bill, like the former one, violates the First, Fifth and 14th Amendments: "The statute violates the due process clause of the 14th Amendment ... in that it is overbroad, and is impermissibly vague. The statute denies plaintiffs and others substantive and procedural due process in that it unduly causes deprivation of a protected use, and is arbitrary, capricious, unreasonable and unrelated to any legitimate state interest. Plaintiffs further seek relief based on the denial of equal protection of the law," the complaint states.

The SOBs say the two laws are "virtually identical," and that HB 121 is unconstitutional.

They say the new law singles out adult businesses "based on improper predicates" and "gives law enforcement authorities the power to decide for themselves what activity evidences intent to engage in sexual activity for a fee. ...

"The entertainment services and companionship services provided by plaintiffs herein are a form of expression, or are free association, as protected by the First Amendment," the complaint states.

The SOBs operate under Utah's Sexually Oriented Business ordinance, and are licensed and regulated.

"Plaintiffs clearly have the right to present presumptively protected expression for their patrons and the public in general, and have a clear right to use and operate their businesses without interference by defendants, their agents, servants or employees, or without unlawfully burdensome and discriminatory taxes," the complaint states.

The plaintiffs seek declaratory judgment, a restraining order and permanent injunction.

They are represented by W. Andrew McCullough, president of the Libertarian Party of Utah, of Midvale.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit