Wednesday, September 18, 2013

Constitutional Challenges to Sexual Solicitation Statute Rejected

Bushco v. Shurtleff, 2013 WL 4779612 (9/9/13) (Ut.) (Published) - The 10th turns back an escort services' facial constitutional challenges to a sexual solicitation statute that criminalizes engaging in, or offering to engage in, or requesting another to engage in certain sexual acts, including exposure of specific private parts, masturbation, touching certain private parts and "any act of lewdness," with the intent to engage in sexual activity for a fee. The statute provides that the requisite intent may be inferred from the person "engaging in, or offering," etc. the listed sexual acts. First, the 10th held a prior federal district court judgment finding a different sexual solicitation statute unconstitutional did not preclude the state from arguing the statute involved in this case is constitutional because, unlike the former statute, the latter statute requires a specific intent. So whereas a ballet dancer touching the pubic area of another dancer as part of a dance performance would violate the former statute, the dancer would not violate the latter statute. Second, the statute is not overbroad. Where a statute regulates conduct as opposed to pure speech, overbreadth must be real and substantial in relation to the statute's legitimate sweep. Here the statute does not reach a substantial amount of protected speech, e.g. nude dancing, because it only prohibits conduct done with the intent to exchange sexual activity for a fee, i.e., prostitution. It doesn't cover "a wife touching her husband's buttocks during an embrace." Third, the statute does not impose too great a burden on protected expression. It restricts First Amendment rights to an extent no greater than necessary to serve the state's anti-prostitution interest. It facilitates the detection of prostitution by preventing the tactic of prostitutes asking potential customers to engage in a sexual act to prove the customers are not undercover officers [assuming the officers are ethical]. The statute is not directed at adult entertainers and it only prohibits sexual acts done with a specific prostitution intent. Fourth, the statute is not unconstitutionally vague. "Masturbation" is not a vague term because the statute only prohibits actual masturbation and because of the intent element. And the meaning of "any act of lewdness" is limited by the description of the other sexual acts prohibited and the requisite intent. And the statute does not authorize discriminatory enforcement. The specific intent "is an objectively verifiable requirement," [especially if you're a mind reader]. The inference part of the statute is limited by the requirement to assess the inference in light of the totality of the circumstances. That type of intent inference is made all the time. So officer discretion is constrained.