Should the Law Permit Sexual Contact Between Police and Suspects?

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Posted in: Law Enforcement

In at least three states—Alaska, Michigan, and Hawaii—police officers are permitted by law to have sexual contact with people they suspect of prostitution. In Alaska, a pending house bill and senate bill would change that. Michigan and Hawaii have also had bills introduced to change this state of affairs to a greater or lesser extent. In this column, I will consider the arguments for maintaining the status quo as well as for changing things, as the Alaska bill would do.

The Rationale Behind Allowing Sexual Contact

After learning that police in several states could have sexual contact with suspects without violating the law, I approached a variety of people and told them about this seemingly odd fact. They responded uniformly by saying something on the order of “that’s outrageous!” or “why would that be legal?” I replied by letting them know the reason, to the extent that it can be considered a reason.

Undercover police officers argue that in order to be able to catch a sex worker agreeing to exchange sex for money, police need to be credible customers. If a sex worker asks a customer to touch her (or him) before making an agreement and the customer refuses, the refusal will immediately notify the sex worker that she (or he) is not dealing with a real customer and that the putative customer is actually an undercover police officer. To enable officers to conduct a successful sting operation, the argument goes, they need to be able to do what a real customer would do under the circumstances, and a real customer would be happy to have sexual contact with the sex worker before having to pay or agree to pay money.

However, an exception to prostitution laws for police officers gives police the freedom to coerce sex from vulnerable victims: if a sex worker were to claim that a police officer forced sexual contact on her, many people would assume that she was lying to avoid prosecution and conviction for engaging in prostitution. We must therefore consider the question whether the risk of abuse outweighs the benefit of making it easier for police to “catch” prostitutes plying their trade by having sexual contact with them.

A Due Process Violation

At least one court has weighed in on the constitutionality of police-prostitute sexual contact. In 2009, in Minnesota v. Burkland, the Minnesota court of appeals held that a prostitution conviction against a defendant could not stand because of the outrageous behavior of the police officer who caught her. The officer in Burkland, posing as a customer, had, after a suspected prostitute had given him an hour-long topless massage, initiated sexual contact with the suspect by fondling her breasts and then allowing her to escalate sexual contact by rubbing his penis while he continued to fondle her bare breasts. Burkland was charged with various prostitution crimes and convicted of one, but she successfully argued to the court of appeals that her conviction should be reversed because the officer’s conduct was outrageous.

Under both the federal Constitution and the Minnesota constitution, outrageous conduct by the government violates a criminal defendant’s right to due process. What made the police officer’s sexual contact with Burkland outrageous, however, was the fact that it was gratuitous—it apparently was not necessary for the officer to avoid detection in his undercover operation. In the court’s words, it was “not required for the collection of evidence.” The court specifically distinguished other cases in which police “needed” to engage in sexual contact in order to avoid detection as police.

Even the Minnesota court thus apparently regarded it as legitimate (or at least as not violative of a suspect’s due process rights) for police to have sexual contact with a suspect if such contact was seen as necessary to successfully carry out a sting operation. But should police officers be touching sex workers? The answer may depend on one’s view of sex work.

A Libertarian View

On a libertarian view, people ought to be able to have sex in exchange for money, and the entire project of criminalizing and punishing sex workers and their clients violates people’s fundamental freedom to do what they please so long as it does not hurt anyone. If one takes this view, then it would necessarily follow that a law or policy that permits police to engage in sexual contact with sex workers as part of an effort to apprehend such workers for the crime of prostitution is illegitimate. Part of what makes it illegitimate, moreover, is that the police are receiving valuable services from the sex workers and then arresting them instead of paying for those services.

Libertarians support freedom of contract, and the notion of using the government’s power first to induce a target to provide a service and then to take that target into custody without compensating her is offensive. Ironically, libertarians would generally regard any sexual contact, if consensual, as legitimate, but they might make an exception for police conducting a sting. This is because the police are committing fraud against the sex worker, and fraudulent conduct—especially by the government—is inimical to the contractual freedom that people ought to enjoy, especially when that fraud culminates in an arrest for a victimless crime.

A Feminist View

On a feminist/anti-trafficking view, sex work is an inherently coercive enterprise in which mostly women (but also men) who have limited employment options resort to commodifying their sexuality. They suffer in a business in which pimps and johns essentially victimize them by sexually exploiting them for money. Taking this perspective, police should not be pursuing sex workers at all, but not because sex work is a victimless exercise of freedom, as the libertarian believes. Instead, the exploiters—such as pimps and johns—should be the targets of law enforcement efforts, and thus any police sexual contact with a sex worker herself (or himself) would necessarily be wrong, tantamount to sexual contact with a suspected rape victim. For police to engage in the very exploitative conduct that makes it appropriate to criminalize the behavior of pimps and johns in the first place would necessarily be indefensible. And though sex workers generally do not share the view that they are all victims who lack agency, they do seem to view sexual contact with someone who subsequently arrests them as a traumatic violation.

A Morality-Based View

The one view under which police might seem to be able to appeal successfully in defending the legality of sexual contact with sex workers is the traditional morality view. On this view, prostitution is a crime because it is immoral for a person to sell or to buy sex for money. This view rejects the idea that people should be free to have sex in exchange for money. It also does not regard sex workers as inherently victims (though some of them might be if they were coerced into the business) but often as perpetrators, just as the police view them. If one were pursuing other sorts of crimes that one considered properly criminal, it might seem appropriate to allow police to behave as bona fide customers. For example, few would think it abusive for a police officer to act the part of one soliciting the help of a paid assassin in order to catch the assassin preparing to kill someone for money, even if this meant that the assassin did some preparatory work on the assumption that he would be paid and instead found himself arrested for his crime.

Yet those who find prostitution morally offensive would probably also find it immoral for a police officer to be touching the breasts of a prostitute or having his penis rubbed by the same prostitute (even if, by contrast with the Burkland case from Minnesota, the sexual contact served a law enforcement objective). Police officers, on the morality-based approach, are supposed to behave scrupulously and morally, and having sexual contact with a stranger who is allowing that contact for an expected paycheck is not scrupulous at all. It is immoral in much the way that prostitution itself is immoral under this view. Some might say that having sex with a stranger who believes she will be paid is an immoral means that is justified by the ends of successfully prosecuting prostitutes. But people wedded to traditional morality often do not believe that the ends can justify the means in such situations. Therefore, even those who believe that sex workers are doing something wrong would likely be repelled by the prospect of police having sexual contact with those sex workers as a means of apprehending them.

Who Thinks Police Should Have Sex With Suspected Prostitutes?

If none of the leading philosophical approaches takes a positive view of police having sexual contact with prostitutes, who does? The short answer is: some police. They argue that they need to have this option as a means of preventing sex workers from using a prohibition against such conduct to detect which of their customers are police. But even if they’re right in their prediction, they’re bottom line is wrong. For the various reasons outlined above, whether one is a libertarian, a feminist, or a traditionalist, one ought to support initiatives to end the practice of police having sexual contact with prostitution suspects. The behavior is unethical (by stealing services from a sex worker), abusive (by targeting people who are often if not always victims rather than perpetrators), and morally repugnant (by engaging in the very immoral conduct condemned by the law). Accordingly, if refraining from sexual contact with sex workers makes it somewhat more difficult for police to apprehend sex workers, then that is a small price to pay to protect sex workers from predatory behavior by police.

  • Joe Paulson

    Basically, prostitution laws would be not important enough as a whole to allow this. And/or the nature of the activity makes usage of sex not worth the candle. The title in effect might go further though — you’d have to imagine some crime where sex might be used such as let’s say terrorism where the suspect is caught by some sort of “honey trap” or something.

    • J.E. Tarrant

      You are correct about the “honey trap,” the FBI has been caught finding attractive agents for (mostly female) informants. Oddly, the article leaves out what exactly they mean by “sexual conduct.” Since 47 states outright prohibit it, it clearly is not a popular practice, especially since the remaining three are moving to ban it. Prostitutes routinely ask potential clients to touch their breasts or genitalia to prove they are not Police. It can be hard to prove that what the UC was paying for was sex. Interestingly, her feminist diatribe misses the main point of prostitution stings. Law Enforcement arrests prostitutes for two primary reasons; 1. When they have find them dead in a ditch somewhere they can identify the body because they’ll have fingerprints , and 2. In order to prosecute the pimps. You need to prove prostitution in order to prosecute someone for profiting from it and facilitate it (which insanely hard). It isn’t really possible, from a real world legal viewpoint, to prosecute a pimp without having prostitutes caught in the act.

  • Ian Quinn

    To my libertarian sensibilities, these anti-prostitution statutes are inherently oppressive and the police who enforce them are almost invariably predatory. I don’t see how anyone who is okay with arresting and incarcerating sex workers should be particularly bothered by whether there is sexual contact incident to the actual arrest. You either respect sex worker’s rights or you don’t.

  • Steve Garcia

    While by no means being an expert on this subject, my friends tell me that prostitutes always touch the john first. Not the other way around.