SALT LAKE CITY (CN) – Masturbating for a paying audience is not illegal under Utah’s prostitution law, a divided appeals court ruled, after judges wrangled over the state’s definition of “with.”
Rychelle Mary Hawker conditionally pleaded guilty in Utah County to possession of a controlled substance, a third-degree felony, and sexual solicitation, a misdemeanor. She conditioned her plea on the right to appeal the sexual solicitation charge, claiming that the “conduct at issue” was not proscribed by the sexual solicitation law.
The Utah Court of Appeals agreed with her on June 3, and reversed.
According to the appeals court summary, a detective found Hawker in an Internet advertisement for escort services that showed a “scantily dressed” woman “in seductive pos[es].”
The detective asked Hawker to meet him at a motel, in a short skirt with no underwear, and to “perform with [a] sex toy” while he “watch[ed].” (All brackets as in appeals court ruling.)
Hawker agreed, at $250 for 30 minutes or $300 for an hour, and asked that the caller “pitch in a little bit for gas money” and said he could “tip for whatever it was worth,” Judge Gregory Orme wrote for the three-judge appeals panel.
When Hawker met the caller, he told her he was a detective and arrested her for agreeing to “masturbat[e] with a sex toy for money.”
While searching for sex toys in Hawker’s car, the detective said, he found a syringe loaded with heroin.
Hawker was charged under Utah Code section 76-10-1313, under which “a person agreeing to masturbate so that another may watch, for pleasure and in exchange for money, is participating in a sexual activity with that person.”
Judge J. Frederic Voros Jr. wrote his own opinion, concurring in part with Orme and concurring in the result; and Judge Stephen Ross wrote a dissent.
“There can be no doubt that masturbation is sexual activity; indeed, the Utah Code is explicit on this point,” Orme wrote. “And defendant undisputedly agreed to masturbate for a fee. But the question is not simply whether defendant agreed to engage in sexual activity for a fee. Instead, the question is whether she agreed to commit that sexual activity with another person for a fee.”
Orme continued: “The term ‘with’ has two possible meanings in this context. It can connote ‘one that shares in an action,’ or it can mean ‘accompaniment or companionship.'”
Hawker and the detective never agreed that he would manipulate the toys or otherwise “actively participate in the act of masturbation,” Orme wrote.
“In other words, for these types of sexual activity to be prohibited under subsection (1)(a), ‘with’ must mean that the other person is joining in the activity and not merely there as company or a very small audience.”
Orme found that Hawker did not violate an amendment to the statute, meant to prevent prostitutes from asking customers to expose themselves and masturbate.
Orme called subsection (1)(c), added in 2011, “a highly effective test for distinguishing police officers from ‘johns,’ as on-duty law enforcement officers will not expose themselves and masturbate while serious patrons of prostitution are, reportedly, happy to do so.”
Hawker did not ask the detective to engage in any activity, nor did he agree to do so, which might have enabled Hawker to determine whether he was in law enforcement. “It is logical to conclude, then, that the Legislature did not intend for defendant’s conduct to be criminalized under subsection (1)(c),” Orme wrote.
Voros concurred in part, but rejected what he called the literal reading of (1)(c), “because that reading yields a result so absurd our Legislature could not have intended it: a person could commit sexual solicitation by offering to masturbate alone with the intent to masturbate alone for a fee – an act that would not even be a crime under subsection (1)(a).”
Voros said Hawker should be cleared because of the rule of lenity, which “‘requires that we interpret an ambiguous statute in favor of lenity toward the person charged with criminal wrongdoing.’ That three judges of this court could read the same statute so differently suggests that the rule of lenity should apply here.” (Citations omitted.)
In dissent, Roth said the lead opinion misconstrued legislative intent in the statute’s plain meaning. He cited the dictionary definition of “with,” which is “commonly understood to involve either active or inactive companionship.”
“The inclusion of ‘with’ in subsection 1313(1)(a) indicates legislative intent that another person must be involved in the transaction for sexual activity, but there are no other words in that subsection further qualifying the extent of this other person’s involvement,” Roth wrote.
A Utah Senate committee made headlines in February, when it unanimously approved a resolution declaring a “pornography epidemic” so severe in Utah that it constituted a “public health crisis” that was “addictive” and “linked to lessening desire in young men to marry.”
A Harvard study in 2009 found that Utah residents were the nation’s top consumers of online pornography, on a per capita basis.
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