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Prostitution stings were taking an uncomfortable turn for several Salt Lake City officers working vice.
Undercover officers would approach a woman who appeared to be a prostitute on the street, then ask for her to join them in a vehicle. The woman would jump in an officer's car, but before the officer could ask "How much?" and arrest her for soliciting sex the prostitute would launch her own question at her potential client.
"Are you a cop?"
Prostitutes, savvy to operations set up by police to catch them in the act, would proceed to demand that undercover officers masturbate or touch the prostitute's breasts to "prove" they weren't law enforcement, Salt Lake City Police Chief Chris Burbank said Monday.
"That is problematic for police officers," Burbank said. "I don't want to put my officers in that situation."
Burbank brought the issue to state Rep. Jennifer Seelig, D-Salt Lake City, who in turn introduced HB121. The bill, enacted into a law that takes effect today, amends Utah's sexual solicitation law to include several behaviors that now constitute soliciting sex a crime that is a class B misdemeanor punishable by up to six months in jail and a fine.
Designed to protect police officers from prostitutes who know forcing their clients to engage in sex acts before making an "official" solicitation will weed out cops, the amendments are also necessary to protect underage girls trapped into prostitution and ordered to engage in sexual activity by pimps, Seelig said. Now, when an officer is asked to engage in sexual activity during a sting, he or she can proceed to make an arrest for sexual solicitation if certain criteria are met, she said.
"My concern from a public policy level is it's protection of the young men and women who have been engaged in this," she said.
Not everyone is happy about the changes.
A Midvale attorney who represents several sexually oriented businesses has sued the Utah Attorney General's Office and Burbank over amendments to the state's sexual solicitation law, saying that the legislation is overly broad and violates his clients' rights to free expression under the constitution.
W. Andrew McCullough, on behalf of Baby Dolls Escorts and Companions, filed a complaint in U.S. District Court this month seeking to have the new law declared unconstitutional and that his clients be granted a permanent injunction from having to comply with the new regulations. McCullough, a registered lobbyist for the state's sex industry as well as president of the Libertarian Party of Utah, is arguing the legislation is a throwback to language in a former version of the state's sex solicitation law deemed unconstitutional by a federal court judge in 1988.
McCullough says the changes give police officers too much authority to determine an escort is willing to engage in prostitution, which isn't always the case, he said. He said the language in the law is overly broad and that the law violates sexually oriented businesses' First and 14th Amendment rights under the constitution.
"Effective today, the law says intent to engage in sexual activity can be imputed by a person touching his own genitals," McCullough said. "It gives the policeman the right to decide himself when someone is enticing them into an act of prostitution, and the police don't get to do that."
He said the law could mean that some of his clients, such as strippers, could be targeted by police officers for simply doing their job. After a woman took her clothes off on a stage, McCullough says, a police officer could determine that the woman was soliciting sex when she was just performing and acting "sexy."
But Paul Boyden of the Statewide Association of Prosecutors disagrees with McCullough's interpretation of the changes.
"Our argument to that is 'No,' " he said of McCullough's claims in the lawsuit. "It requires us to prove beyond a reasonable doubt by the evidence in the case that the person intended to engage in sexual activity for hire. The law is not talking about two people on a date and one of them exposes their breasts. We have to prove it was the intent of sex for hire."
McCullough says both Baby Dolls Escorts, which operates under the business name BUSHCO, as well as Companions, do not offer sex in exchange for money because the practice is illegal. He said he anticipates other sexually oriented businesses in Utah may join the lawsuit, which has been assigned to U.S. Magistrate David Nuffer.
Burbank said the law targets only people who engage in illegal prostitution, not licensed escort businesses that McCullough represents.
"If they're not engaging in anything illegal, they won't have to worry about it," Burbank said of amendments to the law.