- Overview
- Relevant Texas Penal Code 2000 (Chapter 43 - Public Indecency) , 1999 , 1995
- West's Texas Digest 2d - Prostitution (1935 - 2002)
- Cravens v. Texas, 1985: a case which provides historical insight about the lack of credibility of prostitutes in court.
- Relevant City Ordinances for Austin, and Dallas
- Fundamentals of Legal Research
- Dialogue with a Texas Lawyer
- Links to U.S. Courts
- Glossary - Index
As stated in the Overview of the Clarity site, "There are numerous laws related to when, where and how consenting adults can or cannot sensuously enjoy themselves in Texas. As a result of confusion about these laws, there may be a tendency to limit our behavior unnecessarily." It is my hope, and one of the purposes of the Clarity site, to become more familiar with what behavior is legally allowed between consenting adults. In order to explore the boundaries of legal behavior it seems like it would be useful to better understand what constitutes illegal behavior or prostitution (since prostitution is currently illegal in Texas).
As the legal boundaries of prostitution are explored, this should not be taken to indicate encouragement of illegal prostitution. My interest is in encouraging legal sensuous encounters between consenting adults. Under no circumstance do I condone or encourage illegal behavior. What is frustrating to me, and probably others, is not knowing where the line is drawn between legal and illegal sensuous behavior. I'm reminded of playing board games as a kid where the rules of the game were printed on the inside of the lid of the box. No such rules were provided with consenting adults. One purpose of this site could be viewed as discovering those rules and making them available to other consenting adults.
As I better understand the rules I intend to abide by them and encourage others to abide by the rules as well. If we find the rules are not to our liking, then I encourage that we use the mechanisms of society to go about changing or modifying undesirable rules. I do not, nor does this site encourage breaking the rules or disobeying the law just because we do not like the rules or law.
As I have stated in many places on this site, I am not a lawyer. However, I am not wealthy enough to hire a lawyer to do the necessary research to determine the boundaries of legal sensuous encounters. Therefore, I will continue to do what I can to discover the limits of legal sensuous encounters. At times this will undoubtedly involve my exploring the limits, facts and characteristics of prostitution as a way of finding out what not to do as long as prostitution is illegal in Texas.
Some of my first efforts exploring the law as a lay person led to the discovery of the Texas Penal Code. Excerpts from the Texas Penal Code that are relevant to prostitution are available at this site. Relevant city ordinances for Austin, and Dallas, Texas are also available.
Though I didn't feel wealthy enough to hire a lawyer, I did have the funds to purchase a book entitled "Fundamentals of Legal Research" by Jacobstein, Mersky and Dunn. Chapter two of their book is "The Legal Research Process." It provides a nice outline for exploring legal issues. My intent is to use their outline to guide my efforts to better understand where legal sensuous encounters between consenting adults bump up against prostitution which is currently illegal in Texas.
The authors recommend four general steps to legal research:
"Thing or subject matter" as a factor for analyzing significant facts.
"The place or property involved in a problem or controversy may be a significant element. Thus, when a passenger is injured in a skidding automobile, the automobile becomes an essential fact in the dispute. (1)"
The above quote suggests the place for engaging in a sensuous encounter might be a "significant fact" meriting further lay/legal research. Some of the possible places that come to mind include public streets, cars, massage parlors, modeling studios, bars for topless dancing, bars for nude dancing, massage parlors, tanning studios, motels, motels with rooms by the week, hotels, apartments, houses. Three broad categories of places for sensuous encounters might include public, semi-public, and private. It would be interesting to know whether the relevant laws apply differently depending on where the sensuous encounter takes place.
Tisdale v. State 1982 includes language that indicates that under certain circumstances, the government can regulate sexual conduct between consenting adults in both public and private settings.
Place might also be important after a sensuous encounter. If a customer places money on a dresser and then leaves (changes places), does that constitute payment.
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"Cause of action or ground of defense" as factors for analyzing significant facts.
"Identify the claim that might be asserted or the defense that might be made. For example, the cause of action might be a breach of contract, negligence, or some other claim.(1)"
A claim that comes to mind relates to a better understanding of the limits of how a sensuous encounter can be legally conducted. If one stays within the legal limits of a sensuous encounter and is still arrested, the claim would be that he or she has been subjected to a false arrest. Another claim that would be of interest to pursue is related to entrapment. What constitutes entrapment and what, if any, are its legal limits? There might be a common law claim that relates to currently acceptable social customs being different from the acceptable customs when a law was originally passed.
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"Relief sought" as a factor for analyzing significant facts.
"What is the purpose of the lawsuit? It might be a civil action in which the party bringing the suit is seeking monetary damages for an injury, or an action in which a party is asking the court to order another party to do a specific act or to refrain from doing a specific act.(1)"
One purpose from the perspective of participants in a legal sensuous encounter would be to have all charges dropped and each participant's name removed from police and court records. A second purpose could be to have the court order the police to refrain from harassing consenting adults involved in legal sensuous encounters. A third purpose could be to have the police officers involved perform some form of restitution for the participants to the legal sensuous encounter in return for the trouble caused the consenting adults. The restitution could be in the form of service or monetary.
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"Persons or parties involved" as a factor for analyzing significant facts.
"The parties or persons might be individuals, or might be a group that is significant to the solution of the problem or the outcome of the lawsuit. Similarly, the relationship between the parties, such as exists between husband and wife or employer and employee, might be of special importance.(1)"
A list of the parties involved might include: a man and a woman (as consenting adults), arresting officers, police officers as a group, Chief of Police, elected officials that provide a budget and direction to the Chief of Police such as city council, judges and state legislators who pass laws and make money available for certain projects. Another involved group might consist of owners of adult businesses. In a larger more general sense, the entire community in which the consenting adults live may be involved.
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Formulate the legal issues to be researched.
"The goal is to classify or categorize the problem into general, and increasingly specific, subject areas and to begin to hypothesize legal issues. For example, is this a matter of civil or criminal law? Federal or state law? Are we in the area of contracts, torts or both?(1)"
The issue of legal sensuous encounters as contrasted with illegal prostitution seems mostly a matter of criminal law. Federal law allows prostitution to be legal in certain Nevada counties. It is likely that all other states could do as Nevada has chosen and legalize prostitution. However, Texas has chosen for prostitution to be illegal so the pertaining laws are probably state laws (i.e., Texas laws). An arrest of individuals involved in a legal sensuous encounter probably involves elements of contract and tort. There may have been a contract between the consenting adults though it was not a contract for sexual conduct. Tort may be involved if police are illegally harassing consenting adults. I really don't know much about contracts and torts but this will be my opinion for now.
"Writing a clear, concise statement of each legal issue raised by the significant facts is an important and difficult task. (1)"
Well, no one ever said this would be easy. Here is my list of legal issues to be researched.
Tisdale v. State 1982 includes language that indicates that under certain circumstances, the government can regulate sexual conduct between consenting adults in both public and private settings.
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In Roper vs. State (1983) a lady's conviction was reversed because she had not been paid for her sexual favors. A fairly complete description of the interaction was provided.
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As I've read more about entrapment, the thought occurred to me that entrapment is not an issue if the sensuous encounter is structured safely and legally. Entrapment becomes an issue if either of the consenting adults has engaged in illegal behavior. However, if the lady has not done anything illegal and the man is vice, no matter what he does he cannot catch or entrap her unless she does something illegal. The more basic question in my mind is whether a sensuous encounter, as being explored on this site, is completely legal. If money is clearly not for sexual conduct and there is no discussion of sexual conduct for a fee, then is the sensuous encounter truly legal? If so, short of vice lying about what occurred, a consenting adult could not be legally arrested for engaging in a safe, legal sensuous encounter. Police can behave illegally and it shouldn't matter as long as the consenting adults have NOT done anything illegal.
However, the above two sites with information about entrapment make it clear that police can act illegally in order to catch criminals. Many of the "cop" tests I've read about on the Internet may NOT be legally effective. My impression now is that vice can say they are not vice regardless of how they are asked, vice can get undressed (Austin vs. State, Roper vs. State), touch a woman's breasts and genitals and vice, and their assistants, can even have intercourse in an effort to catch a woman engaging in prostitution. So, if the woman is engaging in prostitution, the police can engage in a wide variety of illegal behavior to catch her. The solution for the woman is to simply NOT engage in prostitution. Do NOT discuss sexual conduct for a fee. Police can then engage in all the illegal behavior they want but all they would "catch" would be a consenting adult involved in a legal sensuous encounter. I have to admit, this makes me more curious than ever to find out whether avoiding discussion of sexual conduct enables a sensuous encounter to stay within the bounds of legality.
There have been reports on the Internet about female escorts being busted by vice while the male officer was having sexual intercourse with the lady. Outrage was expressed about police being able to behave illegally in order to catch prostitutes. Police behaving illegally may or may not be outrageous. However, these reports of outrage never clarify whether the lady was behaving illegally. Did she accept payment for sexual conduct? Did she discuss sexual conduct for a fee? These questions are never answered by the outraged writer. If the lady behaved illegally and the vice behaved illegally in order to catch her, then she is busted. My thought is that it seems obvious that the preferred approach is for the lady to NOT do anything illegal in the first place.
One issue that bears further investigation is whether the "cop" tests are of some use. I suspect they are. It seems that Texas law allows vice to engage in illegal behavior to catch criminals. However, I suspect that local police administration has certain rules and regulations about how far such illegal behavior can be taken. So, while a vice officer can engage in illegal behavior according to Texas law, doing so might be in violation of their local policy and procedures. This may be why police in some cities seem to act more considerately than in others. This point seems to be supported by a newspaper article about a reverse sting conducted by a 17 year old girl.
Which brings this discussion to a page I noticed on the Dallas Police Internet site. They have a page where you can report misbehavior of a Dallas police officer to their Internal Affairs Division (IAD). Whether or not the lady engaged in prostitution, she may want to get the officer's name and badge number. If vice behaved inappropriately, it's probably worthwhile to report such behavior to IAD of the appropriate police force. The vice officer may be engaging in illegal behavior and hoping his administration does not learn about his behavior. The vice officer's behavior may be okay legally, but in violation of local police policy or procedure. If the police administration does not hear of vice misbehavior, it may be difficult to hold administration responsible for correcting the situation. So "cop" tests for legal activity may be more effective in some communities than in others depending on local policy and procedures.
I've seen reference to two revision dates of the Texas Penal Code: 1925 and 1974. As far as I've been able to determine, the last revisions to the Texas Penal Code were made in 1974.
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I'm still encouraged by the possibility of structuring sensuous encounters safely, and legally. If the two consenting adults are careful to avoid illegal behavior, this whole entrapment issue seems NOT to apply. A lawyer has provided a site with information about what to do if arrested. If a consenting adult has not done anything illegal, and a vice cop forces illegal behavior on the consenting adult, then this lawyer's advice seems particularly appropriate. The consenting adult should get the officer's name and badge number and only provide name and address in return. Any other questions should be answered by a request to have one's lawyer present.
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1. "Fundamentals of Legal Research" by Jacobstein, Mersky and Dunn, The Foundation Press, 1994.
Send comments to Clarity
The Clarity site does not encourage nor condone illegal sexual conduct. Offering, agreeing, or engaging in sexual conduct for a fee is prostitution which is illegal in Texas. Illegal prostitution should be avoided. As consenting adults, it is hoped that we can safely enjoy the free sharing of sexual favors, if that is our desire.
Austin v. State, 794 S.W.2d 408 (Tex.App.-Austin 1990)
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Austin v. State, 794 S.W.2d 408 (Tex.App.-Austin 1990)
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