- Situation Description
- Reader Responses: Response 1
Mike has just met Betty who he really likes. They are both attracted by the other's personality and sensuality. Mike invites Betty to join him for dinner and a play and she accepts. Mike pays $30 to have flowers delivered to Betty the day before the play. The following day, Mike picks up tickets for the play before they meet for dinner. Each ticket costs $35 for a total of $70. That evening they have a full course meal and wine at one of Austin's finer restaurants. Mike offers to pay for the dinner, which after tip comes to $85, and Betty verbally thanks him for the nice dinner and gently hugs his arm as they leave the restaurant. They attend the play and are thoroughly entertained. Though Mike has enjoyed himself, as they walk to his car he finds himself tallying up the total financial cost for the evening - $185.
Mike drives Betty home to her apartment and she invites him up for a drink. He agrees and ends up on the couch sipping his drink and visiting and snuggling with Betty. A sip here, a kiss there and before long Mike and Betty have undressed each other. As consenting adults, they proceed to enjoy an evening of condom protected sensuously safe sex.
I'm not a lawyer. I do have an opinion though. It's my opinion that Mike and Betty, in the above scenario, did not engage in prostitution. Since they did not negotiate a fee for sexual conduct, it would be difficult to show that either of them engaged in sexual conduct for a fee. It is my opinion, for whatever it may be worth, that their behavior was not within the definition of prostitution. Texas law defines prostitution to include when one "offers to engage, agrees to engage, or engages in sexual conduct for a fee."
Tisdale v. State provides quite a bit of discussion relevant to Mike and Betty's evening. However, I was not able to derive anything that would allow me to state definitely whether Mike and Betty had engaged in prostitution or not.
Tisdale v. State (Link 1) (Link15) states the situation in negative terms; that is, the Texas prostitution statute does not exclude bartering for sexual conduct between a husband and wife or other consenting adults. Though I'm not sure, I think there is a difference between "not excluding" and "including." Basically, the wording chosen seems to leave the door open for use of the Texas prostitution law between husband and wife if desired.
Then , Tisdale v. State (Link 13) goes on to confuse fee for "professional services" with bartering for things that do not involve direct monetary compensation. Tisdale v. State makes it sound like the husband and wife or consenting adults could negotiate sex for a fee as long as neither adult does so routinely as a "profession." No hints are given about how one would determine when an activity is done "professionally." Then five examples are given that apparently do not constitute prostitution. None of the five examples seem to involve people engaging in sex professionally. However, none of the five examples involve a monetary fee either. Each example involves bartering for sex for non-monetary compensation. These lines of reasoning leave confusion whether the key is "professional" activity or monetary fee.
I'm still guessing that Mike and Betty have not engaged in prostitution. Though Tisdale v. State seems to deal with relevant issues, it really doesn't seem to decide the situation.
I'd be curious to hear what others think. Have Mike and Betty engaged in prostitution?
Re: Mike & Betty
To whom it may concern:
If you want to look at it that way, I believe every relationship has an
exchange factor int it and every male and female are available for a price.
Description of a Marital Dynamic:
Sally and Paul have been happily married for a little over three years. One evening, a little after Xmas, they were playfully chatting in bed before going to sleep. For several days they had been discussing the monetary nature of Xmas. Paul made the comment that all the focus on money took some of the fun and pleasure out of Xmas. Sally was in a bit of a teasing mood. In a sultry voice she said, "I'll give you a blow job for $20 bucks mister." Paul picked up on the playfulness and reached over to the night stand for his billfold. He took out a $20 and a $10 and said "I've heard you do good work. If I come and not a drop is spilled, I'll throw in an extra $10 tip." Paul ended up paying Sally $30 for a blow job.
Did Sally and Paul engage in prostitution?
I'm not a lawyer. I do have an opinion though. It's my opinion that Sally and Paul, in the above scenario, did engage in prostitution. Since they negotiated a fee for sexual conduct, their behavior falls within the definition of prostitution.
Texas law defines prostitution to include when one "offers to engage, agrees to engage, or engages in sexual conduct for a fee."
In Tisdale v. State, 640 S.W.2d 409. such a situation between husband and wife was considered. It appears a court could decide either way in such a situation. The possibility of a prostitution conviction was not excluded.
Some might say that a married couple has a right to privacy that would protect them from government intrusion. Tisdale v. State has several relevant parts (
Part 1 ,
Part 2 ,
Part 3 ,
Part 4 ,
Part 5
)
that seem to leave the door open for the government to enter in order to "protect the health, safety and welfare of the population at large." As Tisdale v. State seems inclined to do, it doesn't provide much clarity so much as indicate that individuals sometimes have a right to privacy and sometimes not.
I'd be curious to hear what others think. Have Sally and Paul engaged in prostitution?
Subj: Sally & Paul, Bill & Mary
First: I am not a lawyer, but I am a third year law student specializing
in Texas state criminal law. I believe my analysis of the prostitution
case is correct, namely the use of commercial (contract) law to analyze
the definition of "professional." I would appreciate additional
attorney input, but I did run this by a law professor at a national law
school and it is a solid, if yet untested, analysis. I do not provide
this information with the intent to assist anyone in violating the Texas
Penal Code, but for informational purposes only.
The key to this case is to interpret profession. A judge is going to
inquire about the commercial nature of the lady, basically: what is her
business? Do not confuse the langage in the opinion that compares the
professional to an artist, skilled person, etc. That is dicta to show
that professional services are personal and inherent to the individual.
A judge is going to make comparisons to jobs where you retain someone to
do something for you. Think: lawyers, doctors, accountants, personal
trainers, dietitians, and yes, artists. One feature (of many: this is
key) of a professional is doing something of themselves (not needing a
company to provide the person's job: self-sufficiency to a degree) But,
you say, "Anyone can be an expert, skilled, self-contained lovemaker,"
The courts will never fall for a semantic trick of this type. Because
in addition to the nature of the work, the court will ask if this is
what the person does for a living: is it a significant source of the
person's income?
A third consideration in the opinion that further limits the
definition excludes most cases that involves any relationship previous
to the situation at hand. Most of the 5 examples included a
non-commercial relationship (at least girlfriend). You would probably
have to be able to prove a non business relationship to overcome a
presumption of professional services. a pattern of similar activity,
consideration. This is a direct bargained-for exchange, usually money,
but could include services. Taking the 5th example, the lawyer is
definitely guilty of violating the state bar rules and is liable to that
lady for damages in both contract (unconscionable bargaining positions,
duress) and tort (fraud, intentional infliction of emotional duress),
but is probably not guilty of prostitution.
I hope the above has given you some insight and perspective on the
court's rationale which is the applicable law. You should take this
discussion of "professional" and see what those other two state cases:
the Connecticut and the one I don't recall.
*********************
Thanks for taking the time to elaborate on the concept of "professional." I'll try to paraphrase what I think I learned from what you wrote.
1. If the lady derives her liveihood from exchanging sexual conduct for a fee, she is more likely to be convicted if arrested for prostitution.
2. If the two consenting adults have had an ongoing, prior relationship, and neither is a "professional" prostitute, then they are less likely to get convicted if arrested for prostitution.
The above are two issues of which I had not previously been aware. However, in this murky world of ours an additional consideration comes to mind.
Let's say Austin PD is conducting a street prostitution sting. One of their attractive female officers is posing as a street prostitute. A guy walks up to her and asks if she will provide a blow job for $50. He will almost certainly be arrested and convicted. However, the female officer does not derive her livelihood from prostitution. So, your reasoning as I understand it would suggest the guy would not get arrested and convicted in this type of situation when in fact this is how Austin PD probably gets its largest number of arrests and convictions.
My understanding of your reasoning suggests there has been no commercial contract in the above street situation and thus no prostitution.
My reading of the Texas penal code's definition of prostitution does not involve the concepts of "profession" nor "commercial contract." According to the definition, if a person offers, agrees, or engages in sexual conduct for a fee, that person has engaged in prostitution. Though as I typed in the word "fee" I realized that this may be where the notions of "profession" and "commercial contract" come into play.
Black's Law Dictionary provides a definition of "fee" that includes "professional" exchange or "compensation for a particular act or service." It is not clear whether "compensation for a particular act or service" would be limited to "professional" services. Tisdale v. State also provides additional language that the penal code does not necessarily exclude "sexual conduct which might involve bartering process between husband and wife or between other consenting adults in privacy of their own home." However, Tisdale v. State also includes language that indicates "fee" is limited to "professional" services.
Going back to the above street situation, the guy's defense lawyer could apparently argue that when the guy offered $50 for the blow job, the guy was not offering a fee to a lady who provides sexual conduct as a profession. Therefore, no prostitution. Maybe the police's prosecuting attorney would argue the female officer was acting the role of a "professional." It seems like it would be hard to prove that the guy "knew" the lady was a professional in order for his offer to be considered a fee.
Well, I have a better understanding of some of the issues though obviously it does not appear to be cut and dry. Any thoughts that might help me break through this fog?
Thanks again,
Clarity
Description of Ending a Session:
Bill has arranged an incall with a lovely adult entertainer, Mary. Following arrival at her upscale apartment, Bill paid Mary $150 for a nude modelling session. After about 15 minutes of nude modelling Bill says he would be interested in having sex. Mary says the $150 is strictly for nude modelling only. However, she goes on to say that if Bill would like, they could end the session and then spend some time doing whatever they wish as two consenting adults. So they agree to end the session and spend the next 30 - 45 minutes in wild sexual abandon, properly protected by a condom of course.
Texas law defines prostitution to include when one "offers to engage, agrees to engage, or engages in sexual conduct for a fee." As described above, have Mary and Bill engaged in prostitution? I'd very much like to hear opinions about this situation. Also of interest would be a source of laws, city ordinances, legal cases or legal opinions that are related to this situation.
In Austin v. Texas, 794 S.W.2d 408 (Tex.App.-Austin 1990) (Reference 1 , Reference 2 ) a similar situation to Bill and Mary's arose in a massage parlor. The female masseuse and her client (a vice cop) agreed to end the session. However, before he agreed to end the session, the client (vice cop) asked if he would be able to get "more than a rub." The female masseuse said it was "all taken care of." The vice cop took this to mean that the fee he previously paid would cover the sexual intercouse to which they agreed after the session ended. The vice cop then arrested the lady and she was subsequently convicted.
The key difference between "Bill and Mary" and "Austin v. Texas" was whether the fee was only for the session. Bill and Mary clearly limited the fee to the session. The fee was kept out of what they did after the session ended. In "Austin v. Texas" the vice cop held the opinion that the fee he paid was also covering the sexual intercourse negotiated after the session ended. The female masseuse said she agreed to engage in sexual intercourse but that she did not do so for a fee. It came down to the female masseuse' word against the vice cop's word. Austin v. State, 794 S.W.2d 408 (Tex.App.-Austin 1990)
Opinion Ref. 1,
Opinion Ref. 2,
Opinion Ref. 3,
Opinion Ref. 4
Opinion Ref. 5
In Morris v. State, 1978, it also came down to a lady's word against the word of a vice cop. The jury favored the word of the vice cop in the absence of any further evidence other than the word of the lady.
In Roper v. Texas, 652 S.W.2d 398 (1983), two vice officers paid for a session at a studio. There was no negotiation of a fee for sexual conduct and the ladies involved did not receive any money for sexual conduct. Though the two ladies were arrested, they were eventually acquitted.
If you are in a nude modeling studio and in the presence of a model who is
nude and then you were arrested or the place was busted while you were
going at it, I don't think there is a judge in the world who would buy
your arguement that you both agreed to end the session. Legally, it may
not be an act of prostitution. Reality, tells me the charges would
stick.To be an act of prostitution, it is not necessary to have sex. I
hardly think that MARY would sleep with you just for FUN. The question I
pose to you is this. If you and Mary are in a private room, and you
commit an act of prostitution, and you aren't the police and she isn't,
how are the police suppossed to know? Now I'm not sure, but when ONE lady
is caught, I think they bust the entire place. I know that sounds
unconstitutional and unfair, but I think that's how it works. Someone who
has first hand knowledge correct me if I am wrong please.
In the initial description, Mary Hypothetical suggested ending the session after 15 minutes. My acquaintance said it would make more sense to go ahead and do a full 30 minute, totally safe, session. Then after a nice session, Mary could suggest ending the session. After ending the session, if Mary were feeling sensuous and aroused from the session she just ended, she could tell Bill she was feeling aroused and ask if he, as a consenting adult, would like to stick around and explore how they might enjoy each other. This would provide Mary with a safe way to get to know Bill. It would also be a way to leave Bill feeling good about meeting Mary. He would then be more likely to become a regular customer. In future sessions with Bill, Mary wouldn't necessarily need to use this procedure again.
I brought up the issue of people and rooms being wired with recordings. She correctly pointed out the recording would confirm Mary had ended the session. Anything afterward would just be enjoyment between two consenting adults.
Their interchange is not, by Law in New York state, prostition because
neither of them overtly discussed anything other than modeling
beforehand. However, if any sort of "tipping" had been discussed before
the modeling session then a Judge might find enough cause to charge
them.
Had Mary been an Avon lady who sold Bill some cologne, then decided to
have sex at his request, would that be prostitution because she accepted
money for a product? I see no difference.. and I see no prostitution..
Realistically speaking, whether or not Mary and Bill have technically
engaged in prostitution, I beleive that most judges would see this as
prostitution. I certainly would not wish to be put in the position of
trying to convince a judge (or jury) that the session had ended.
Also, from a technical standpoint, since Bill propositioned Mary DURING
the session, Bill would probably be guilty of soliciting prostitution.
It was a Saturday night and Tom decided to go to his favorite topless bar. He enjoyed the social interactions, a cool drink and a chance to relax. Of course Tawny was working that night and he particularly enjoyed her table dances. When Tawny got a moment she came over and joined Tom for a drink. A few songs later Tom expressed an interest in buying a table dance. Within a song or two, Tawny heard one she liked and went to work. Both Tom and Tawny knew they were stretching the club rules by the way Tawny danced. After she removed her top, she would occasionally brush her breast along Tom's nose or forehead. Though he knew this was risky it was titillating and didn't seem to be doing anyone any harm. After the song ended, Tom payed Tawny for the dance and they sat and visited a while longer.
It may seem absurd to even raise the issue, but have Tom and Tawny, as described above, engaged in prostitution ?
I'm certainly not a lawyer, but I do have an opinion. It is my opinion that, according to the letter of the law, Tom and Tawny have indeed engaged in prostitution. The law considers "touching of the . . . breast . . . with intent to arouse" to be sexual contact. Sexual conduct, as defined by law, includes sexual contact. Prostitution is partially defined as engaging in sexual conduct for a fee. Tom paid Tawny a fee for a service that included sexual conduct; that is prostitution according to the letter of the law. At least that's my opinion. I'd be curious to learn of other interpretations.
I subsequently found a Texas case that specifically addresses this issue. In STEINBACH v. STATE Nov. 13, 1998 a lady sold a nude lap dance to a police officer. The police officer remained fully clothed throughout the session. She was arrested and convicted for prostitution.
Nancy had been a registered massage therapist for about two years. She was a very skilled therapist, her clients seemed pleased, and she was making a reasonably good living. In addition to being a skilled massage therapist, Nancy was a healthy, sensuous woman who particularly enjoyed the physical interaction with some of her male clients.
Nancy enjoyed the physical interaction so much, that she had begun to wonder how she might take the interaction further. She knew she would enjoy exploring having sex with a few of her male clients, but also knew there was a risk of getting caught up in the illegality and social stigma of prostitution. She knew that having sex would have to be kept separate from any payment for a therapeutic massage. She also knew that it would be good to have some sort of evidence that the massage fee had nothing whatsoever to do with any sexual involvement she might have with her clients.
Bill, on the other hand, was a mid-level executive at a local technology firm. His job involved a fair amount of stress, which led him to enjoy an occasional massage. In the past, while enjoying a massage from an attractive lady, he had found his mind wandering to the possibility of something more sensual or sexual. The risk of getting involved in the social stigma of prostitution though, made him fairly anxious about pursuing the possibilities. He suspected he would be favorably inclined, if he could somehow follow his interests safely and legally.
Bill had seen Nancy's ad in the newspaper for massage therapy. He called her and liked the way she sounded on the phone. At one point the issue of price arose. Nancy explained that her fee was $100. Bill mentioned that seemed somewhat high and Nancy replied that she had numerous regulars that seemed to enjoy her sessions. Bill noticed that Nancy did not mention how long the session would last. That concerned him a little bit but he decided not to press the issue. He was concerned that he might be getting set up to be ripped off. On the other hand he though maybe it would be worth exploring. Bill had reviewed the massage user group discussions on the Internet for his community and had not seen any negative information posted about Nancy. He decided to go ahead and schedule a session with her.
Nancy kept an apartment where she provided her therapeutic massage sessions. When Bill arrived for his appointment, they first visited briefly while she asked about his medical history to determine if he had any injuries she would need to know about. Nancy then took Bill to the room she had setup for giving massages. She invited him to get comfortable and after disrobing to lie face down on the table. She then briefly left the room.
While disrobing, Bill noticed a dish on the dresser with a sign Nancy had posted asking for the $100 fee to be placed in the dish. Bill placed two $50 bills in the dish so that Nancy would be comfortable about getting paid. He then lay down on the massage table and chose not to cover his rear with the "drape" (towel) that Nancy had provided for his optional use. He wondered if this might help convey that he was comfortable with nudity and his sexuality.
Nancy returned shortly, noticed the $100 in her dish, and proceded to provide Bill with a very relaxing and enjoyable therapeutic massage. During the session, Nancy could tell Bill was one of those clients with whom she would enjoy exploring some sort of sexual involvement if it could be done safely and legally. Bill was having similar thoughts as he relaxed and enjoyed having the stress and tension worked from his muscles and joints.
Bob was lying on his back, again without the "drape," as Nancy finished the therapeutic massage. She was standing by his side with her hand resting on his abdomen. Nancy then said something like, "Well, Bob that finishes the therapeutic massage. I hope you found it enjoyable. But before you get up I'd like for you to just lie there for a few minutes, relax, and think about something I'd like to explain."
Bob, though relaxed, was a little nervous but decided to follow Nancy's lead. So he lay back, and heard her out. Nancy continued by saying, "As I just mentioned, the massage session is over and the fee you paid is solely limited to the massage session that has just ended. Is that understood."
Bob decided to go along, and said "Yes, I understand."
Nancy then handed Bob a waiver form for him to review, initial, and date. She continued by saying, "I hope you will take a little time to review and initial this form. It will help insure that whatever we might do as consenting adults will not get us into any trouble."
Bob was somewhat anxious about initialing such a waiver form. However, its purpose seemed to be to make very clear that any money exchanged was solely for the massage. He didn't see any harm in that and liked what Nancy had said about "consenting adults." He asked for a pen and initialed the waiver.
Nancy then said, "Well, since we both agree that the massage session is over, I would like to explore an idea that crossed my mind and I hope you won't mind." Nancy then lifted Bill's arm nearest her and placed it around her waist. At the same time she began to gently rub his genitals. From there, the two consenting adults pursued their mutual sensuous interests.
Well, that ends what was apparently a very enjoyable time spent by Nancy and Bill, two mutually consenting adults. Of course what comes to mind is to wonder whether they have actually conducted themselves safely and legally. Any comments or suggestions about this hypothetical situation would certainly be welcome.
Tom had never met Alice, but had frequently seen her ad in the "Live Entertainment" section of the local newspaper. Tom had also received electronic mail from other men in town that Alice provided a very nice session. Tom was fairly experienced with visits from "Live Entertainers" and Alice had been working successfully in the field for three years. However, they had never visited with each other. Here's how their first encounter developed.
Tom called the number in Alice's ad and left his name and number on Alice's answering machine. Alice returned his call and they visited briefly. Tom mentioned he had received electronic mail about her. Tom indicated he would like to spend $200 and asked about setting up an appointment. They agreed upon a time for an incall at an apartment Alice rented for her sessions.
At the agreed upon time, Tom arrived and was greeted at the door by Alice. She was quite attractive as he had been led to believe. After exchanging pleasantries, Alice led Tom into a bedroom. She invited Tom to get undressed and comfortable for her nude modeling show. Tom asked where he could put his glasses and some money he was carrying. Alice indicated a bookshelf that would be good for that purpose. Tom placed his glasses and money on the bookshelf, then got undressed and relaxed on the bed.
Alice then returned and began her modeling show. She eventually kneeled on the bed beside Tom and they began to touch and caress each other. Eventually Tom gently brushed against and then stroked Alice's breasts. His other hand moved beneath her panties where he sensuously stroked her genitals. Alice then also became more active and they engaged in considerable sexual conduct as two mutually consenting adults.
Eventually, Alice said she had another commitment and had to ask Tom to leave. He then got dressed. Though in the process of leaving, Tom left $200 on Alice's bookshelf. Alice then walked him to the door and gave him a warm departure hug.
So, as described above, have Tom and Alice engaged in prostitution?
This particular situation has me stumped. Clearly, Tom and Alice have done just about everything possible to dissociate a fee from sexual conduct. There was never any negotiation of a fee for a service. It could also be argued that any fee involved was for the modeling show. Going by the letter of the law, it looks like this is not prostitution. But as I repeatedly state, I am not a lawyer. This is just my opinion.
This approach used by Tom and Alice is what I have come to call the "silent approach." It appears to comply with the letter of the law and in my non-legal opinion seems to be legal. It has a glaring weakness, however, that vice repeatedly use to their advantage. If Tom were a vice cop, or a vice cop's assistant, he could say that it was his understanding that the $200 he left on the bookshelf was Alice's fee for sexual conduct. It boils down to the vice cop's word against the lady's word. In the absence of other evidence, courts seem to favor the vice cop's word - Morris v. State, 1978. Thus, the "silent approach" respects the letter of the law but plays into the hands of vice. There is a proposed approach, called the "receipt approach" that is recommended over the "silent approach."
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.
Then Clarity wrote back:
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