Money for Time is not Money for sex even if implied - NY Jury says

While this case is about BAO tours and paying for barfines in the Philippines the question for the jury was whether paying for time with a prostitute is illegal vs paying for sex.  In a unanimous verdict a NY jury said no, paying for time is not illegal.   The results could just as well have applied to escorts in the U.S. since the issue was paying for time (or bar fine to take out a gal at a bar) which is not the same as paying for sex, and therefore, in this case not illegal.

I have much more of the foreign law aspects in my Philippines report  but here let me limit the issues which are critical in the U.S.

Background reminders - In the Philippines "bargirls" are available for "take out" There is a very clear expectation of sex, but they are paid for their time when bar fined to go to a customers hotel room usually for the night. Prostitution is illegal in the Philippines and New York was prosecuting the owners. New York lost a couple times in lower Courts but the State of New York appealed. At the Appellate Court, they sent the case back for retrial where a jury found them innocent.

There was great political pressure from the major "women's" groups like  Equality Now, that believe all paid sex is trafficking of poor abused women and that no women in their right mind goes into sexwork unless out of desperation or forced by big bad men. Basically they argue that all sexworkers are brainless and have no ability to choose such a horrid degrading profession.   Therefore they must be protected from themselves and the bad men that abuse them. They did a huge public relations campaign to get BAO tours convicted.

There is a huge legal issue about if you can be prosecuted in NY for violating a foreign prostitution law, but regardless of that long argument the case broiled down to were they in violation of the foreign law or not - without going into the jurisdiction arguments. But as I recall the issue was that they could not be convicted in NY if what they did was legal in the Philippines.  This brings in the same money for time not for sex which is the same legal issue in the U.S.

Details from BAO owners - all with their permission to share to educate about their case to help others:

I had a couple of wicked arguments with my own lawyers and at one time I had five public defenders, some with over 20 years of experience, telling me I was "blowing smoke." When I looked them in the eye and said I am correct prove me wrong they through up their hands and their eyes roll up to the ceiling and then they fled from the area.

The jury was forced to acquit us when the State failed to prove beyond a doubt that any penetration sex (or any other sex "penetration" was a key under NY Law) was involved for a fee. Yes, there was lots of sex going on all over the place, legally, but only the time was purchased. In effect this case legalizes Escort service and escorts. Prove us wrong we won in court.

Jury says Money for Time is not prostitution even if sex is intended
Juror Number 4 MaQUana wrote after the trial:
I was on this jury and we had to acquit. And prostitution is illegal in the Philippines. That's the only reason we had jurisdiction, however there is this system and the girls are licensed entertainers and men pay the bar $20 in order to take the girl on a date..... It was a huge waste of taxpayer's money for men who faced less than a year in jail. I spent 2 weeks sitting through this garbage because the AG's office couldn't let a case that Judge Hayes dumped twice just be dumped. It really was a horrible example of the failings in our judicial system. Is is clear these guys are lowlifes, yes, but unfortunately not guilty, and it would have been easy to do so. Tsk tsk attorney general.
1/27/2009 10:23:04 AM

This is for your information and publication if you wish.

Dave notes: "licensed entertainers"... could be in the U.S. or Phoenix where escort licenses required, "licensed escorts." But more clear issue is money for time not sex is not prostitution according to this jury.

Dear Dave:
Last week we held a number of conversations with the people who have a been part of our case from the beginning. My partner has summed up those comments and gives his analysis of the current situation. My partner sage comments are:

In all the back and forth over the last week, one of the most significant consequences of our victory was scarcely mentioned. After about three hours of jury deliberations, the jurors (pinpointed to a man on the panel) submitted three questions for Judge Hayes concerning the applicable law. The most important of them was whether or not we could be convicted of promoting prostitution if they could find no evidence of prostitution actually occurring. Judge Hayes reconvened the court and told the jurors that prostitution must be proven beyond a reasonable doubt. Less than an hour later, the jury found us not guilty.

To be continued part 2 since this too long

Part 2

This came after more than a week of the prosecution bombarding the court with audio and video tapes purporting to prove that prostitution has been an ongoing activity in Angeles City thanks to the barfine system. In defining the law for the jurors, Judge Hayes quoted Penal Law Section 230 as declaring that prostitution is the exchange of sexual conduct for a fee.

In finding us not guilty, the jury effectively held that the barfine does not pay for sexual conduct, but merely to remove an employee from the premises of the bar she works for, for a specified period of time whether there is sexual conduct or not.

The prosecutor had argued that any negotiations between the woman and her customer over sexual conduct prior to his paying the barfine revealed the intent to engage in prostitution. The jury did not buy that. We could have argued further that time and companionship are not among the definitions of sexual conduct within the Penal Law, but our lawyers were squeamish about going there.

The implications of the jury's verdict are profound. It effectively legalizes escort services and freelance escorts who charge by the hour but not for the actual acts, porno movie producers who pay the actors to perform according to a script that includes acts of sexual conduct, even massage parlors and S & M clubs that charge an all-inclusive one-price admission at the door while eschewing additional "happy ending" charges which are clearly illegal. No wonder the state Attorney General's Office has hushed up the verdict until now and ordered the Equality Now people to keep their big mouths shut.
Norman

Note: It is going to be interesting to see what (is published) in the Law Journal as the review of our case.. That won't be out for several months yet.

We are watching Equality Now's website for comments about our case. In November 2008 they were demanding letters be written to Andrew Cuomo encouraging him to prosecute this case. Now that they have lost I bet we get the silent treatment.

Sincerely,
Douglas Allen
BAO Tours

Dave in Phoenix notes:
This case does not assure other juries or judges would reach the same conclusion.  But it suggests IF there is no money paid for any sex act, only an hourly rate for companionship, there is now a jury case to look at that clearly says Money for Time is not prostitution.

Of course other factors that could hurt an escort case is if reviews or websites imply the fee is for sex acts which are often listed this could convince a jury that sex is implied. But implied sex or intent to have sex IS NOT IN THE LAW only paying for sex acts.  That argument has to be made before the judge and/or Jury. It worked for the New York jury.

This shows the importance of all escorts to be clear that they do not offer sex for money only time.  Or, massage places only charge a massage fee, instead of charging for sex acts.  

For example in Canada, technically incalls (bawdy houses) are illegal (but rarely enforced unless complaints) but not prostitution itself so outcall 100% legal as in most of the world.  But if you offered for a fee a "happy ending" at a body rub parlor that could violate the bawdy house law.

For example you have a similar issue at adult body rubs in Canada. You pay say $120 for 40 minutes of "nude reverse". Nothing wrong with being nude or having the client massage the gal. In many U.S. cities that would violate massage ordinances but it is licensing related not criminal. In Canada at a body rub, a "release" is just understood at the end. No separate fee, no sex for money, no bawdy house violation.

In Canada there are two types of massage licenses 1) Body rub parlors for adult massage and 2) RMT - Similar to our LMT's (Registered vs Licensed).

In Canada an RMT requires even more hours of training in most provinces and even more restrictions than in the U.S. and nothing can be done sexually with an RMT.  But they also are covered under Canadian Health Care System

Bottom line if you want to have a defendable case if you unlucky enough to be arrested be very clear you are only selling time.

Talk to an attorney about using both this kind of defense as well as a Lawrence vs Texas Constitutional defense where laws can not restrict privacy rights or be based on morality, which I have written about extensively.

Dave in Phoenix
Promoting Intimacy and Positive Sexuality with honestly and integrity for over a decade

I wish it could set a precedent, but I've never heard of a jury's decision doing so.

Do any lawyers out there have a comment on that?

As for the issue of unlicensed massage, people should check out their state's laws before assuming it is non-criminal.

I believe that in Massachusetts it is a felony to practice any licensed trade without the proper credentials.

A person was sentenced to jail a number of years ago for claiming to be an engineer when he did not, in fact, have a license to practice engineering.

1. This paragraph seems to suggest that the basis of the acquittal was the state failed to prove that any sex had occurred:

"The jury was forced to acquit us when the State failed to prove beyond a doubt that any penetration sex (or any other sex "penetration" was a key under NY Law) was involved for a fee. Yes, there was lots of sex going on all over the place, legally, but only the time was purchased. In effect this case legalizes Escort service and escorts. Prove us wrong we won in court."

         If no sex occurred, there certainly is nothing illegal about paying for a ladies’ time so long as no offer of sex is made. If sex did occur, then it would be remarkable that the jury found that the payment was for the time and not the sex, since the law criminalizes what you do and not what you label your conduct.

          2. Are you saying that the jury made specific finding that the client paid for time rather than sex? While in civil cases it is permissible to ask the jury to make findings on specific issues, I was not aware they could do that in state criminal cases where I thought they just returned a verdict “guilty” or “not guilty”
(But I really do not know).


        3. While interesting, I do not see how there could be any precedential value for this since jury verdicts are not precedents with any binding effect (except of course in the same court system against the same defendant for double jeopardy purposes) and this particular verdict could have been based on the failure of the prosecutor to present appropriate evidence.

In AZ which has one of the more strict laws, Stipulates that the practice of unlicensed massage therapy is a Class 1 Misdemeanor. I think its usually a $300-$500 fine.

Rarely sentenced to maximum penalty which is:

Class 1 misdemeanor: up to $2,500.00 fine and six months in jail;

Does this mean that people convicted of misdemeanors go to jail?
No.  The penalties set out above are only the maximum penalties.  If it is the first time  (or even the second time) you have been convicted of a misdemeanor, it is extremely unlikely that you will be sentenced to any jail time.  (The exception is DUI, which carries a mandatory jail sentence.) Nor is it likely will you have to pay the maximum fine.  For example, if you are convicted of possession of marijuana (which is actually classified as a Class 6 felony, but is usually treated as a Class 1 misdemeanor), you might be fined $400 and sentenced to one year of unsupervised probation.

There was no question that sex occurred, but their was no payment FOR SEX, only her time which is legal.  "There was no offer for sex"... but sex is implied when you barfine a bar girl to take her out to a hotel. You buy her time and have sex just like an escort. You may for time not for sex.

Yes jury found she was paid for time not sex. That was the focus of the case and directions from the judge.  In order to be convicted would have had to have paid for sex.  No one paid for sex, only for time.

No it is not direct precedential value although it probably could be quoted in a defense. And it did work with this jury.  I believe the same case could be made in escort cases if the escort was clearly only selling time.  But would be up to a different jury and judge.  But it at least was successful defense in a case now.

If escort site says rate is $300/hour and that is all that is discussed, where did the client pay for sex?  He paid for time.

I bet any prosecuting attorney could find hundreds of juries that reached a quite different conclusion where it came to strictly American cases.

I am not an attorney, but if I were on trial and my attorney planned to use this as my defense, I would find another attorney. No offense intended, and I am quite sure your intentions are pure, but I am not convinced that this isolated case has any real significance in a US solicitation or prostitution case.

I am curious as to what the other "real" attornies have to say on the matter.

What other defense would you use?

I don't hear about any cases being won, just plea bargained to a class 6 felony with probation to avoid mandatory 15 days in jail in AZ.  Still guilty.  What would you recommend as a defense if a client or provider does not want to have a criminal record and fight the case?

The DC Madam, who committed suicide rather than go to jail had a civil attorney I was in contact with that had a great defense and used Lawrence vs Texas in motions that got the judges attention. Than at trial a new criminal lawyer took over and did the "didn't know they had sex" defense which I have never heard a case where it worked and she was easily convicted with the tragic outcome.

What defense would you recommend, or just plead guilty as most do.

Some defense is better than none and it could influence the plea deal or whether the DA goes forward with a costly trial.

I don't know what defense I would use if I were ever prosecuted for solicitation. As I stipulated to in my previous post, I am not an attorney. If I am ever arrested and prosecuted for enjoying the hobby, I will hire the best attorney available and follow his/her advice.

Again I mean no disrespect, but if it were my ass on the line I would not trust it to convince twelve of my peers that I was paying for "time and companionship". I also disagree with your premise that any DA in the country would be dissuaded from prosecuting such a case because the defense was mounting a defense based on "I was paying for time and companionship". I would think any DA with the least bit of ambition would be chomping at the bit to snag a few headlines with so little risk of failure.

What you say is basically EXACTLY what the lawyers told the defendant in the NY Case.

He insisted they use the money for time not sex defense. The whole legal staff thought it was a joke and would never work.

Yet he won by insisting in this defense.

Obviously each case is different and may not work, but its better than no defense or a plea bargain and a criminal record.

As to the tragic case of Ms. Palfrey, remember she was not prosecuted for violating state prostititution laws in the privacy of her home or otherwise but was indicted for violating RICO, three counts under the Travel Act, and conspiracy to launder money.

        She did in fact move to dismiss all counts under Lawrence v. Texas on the theory that the federal counts were all based on her violation of state prostitution laws and Lawrence rendered state prostitution laws unconstitutional.


        Judge Kessler correctly denied this motion. As we discussed on the Phoenix board, the rationale of Lawrence at best would apply only to sex for pay in an out call setting between consenting adults and would render unconstitutional only state statutes prohibiting prostitution when applied to this fact situation.  No way that it would ever apply to the sale of sex in the public marketplace or the full panoply of state prostitution laws, including the various statutes barring the operation of brothels and making money off of prostitutes which is what she did.

       Judge Kessler thus properly recognized that the reasoning of Lawrence did not extend to the public and commercial activity of which Ms. Palfrey was accused:

"In contrast to the private, non-commercial activity at issue in Lawrence, the conduct alleged in the Indictment in this case concerns the sale of sexual acts in the commercial marketplace. The Indictment alleges that Defendant managed a substantial  business enterprise employing 132 women for the purpose of engaging in prostitution activity with male clients, that she placed job advertisements in the Washington City Paper and the
University of Maryland Diamondback newspaper, and that she advertised the services of the business enterprise to the public in the Washington City Paper, the District of Columbia Yellow Pages, the Northern Virginia SuperPages, and Internet websites. This activity is unquestionably both public and commercial. It does not fall within the reasoning of Lawrence, and therefore the Motion to Dismiss for Unconstitutional Application of the Local Prostitution Statutes must be denied."


So the Lawrence defense was never really there for her but they tried it anyway. This lady should have pled rather than go to trial on the Casablanca defense ("I'm shocked, shocked to learn that my employees were having sex").

        Note that the defense did not work for her even though she made her girls sign employment contracts that contained provisions specifying that they would not engage in prostititution.










-- Modified on 3/30/2009 3:27:46 PM

sometimes a plea bargain is what's in a person's best interest. Without knowing all the  specifics of a particular case, it's impossible to justify such a statement.

I know this point has been made before, but giving advice without "all" the details has the potential to do much more harm than good. I don't know you, but you speak much more like a lay person than an attorney. I would suggest you leave the legal advice to the professionals.

I doubt a New York State court has jurisdiction to try a case wherein the alleged crime occurred in another country.  Remember the alleged act is a crime, not a tort.

You stated. "Background reminders - In the Philippines "bargirls" are available for "take out" There is a very clear expectation of sex, but they are paid for their time when bar fined to go to a customers hotel room usually for the night. Prostitution is illegal in the Philippines and New York was prosecuting the owners. New York lost a couple times in lower Courts but the state of New York appealed. At the Appellate Court, they sent the case back for retrial where a jury found them innocent."

If the state loses in a criminal case the state can't appeal the verdict.  Only the defendant can appeal the verdict if the defendant is found guilty. If the state could appeal a not guilty verdict it would be double jeopardy.

The offer of money or consideration for sex or the offer of sex for money or consideration is all that is required to a violation of solicitation of prostitution to occur.  The defendant is arrested as soon as the offer is made without any physical contact whatsoever.

I would like to see a link to this "story."  

Very good clarification. I do not disagree.

The fact that Lawrence was non commercial however does not preclude it from also applying to in private sex from an escort, it just wasn't the specific Lawrence situation.

I agree it would be much easier to apply to an individual escort going to the private hotel room or home of a client.

Shortly after this case came down I was in a meeting of about a dozen First Amendment Attorneys in Chicago (mostly about swing club legal issues). But many of them also agreed that in their opinion the rationale of the case could be applied to a commercial escort situation in the privacy of a hotel or home.  The government has no business in private sexuality whether paid for or not in some attorney's view when I directly asked about the escort situation.

But its never been tried under a good case for it and I agree DC Madam had other issues hurting its application.

Pointing out potential legal defenses especially when they have worked in specific situations seem very relevant to share with others even if I am not a lawyer.  I am simply suggesting what folks might ask their lawyers to consider.

In the NY case it was the defendants insistence on such a defense saved them from being convicted.  It all rested rested on the prostitution issue.  No money for sex only time per this jury under the facts in this case resulted in no prostitution so no crime.

In prior trials this was also the conclusion of prior judges. But the State of NY under pressure from the radical womens groups kept appealing it. On appeal it was sent back down for the 3rd time to be retried and was won.

I have much more details on the case including the tie in to National Law 202 in the Philippines vs local law related to GROs etc on my site which I don't think I can mention here.

It was clear there was no violation of the PI law since the GRO's were licensed for take out for their time, so the issue was whether or not it was prostitution under NY Law.

-- Modified on 3/30/2009 9:19:15 PM

Re: Regarding NY State jurisdiction - yes it clearly did - and retired case when lost twice in lower courts. This is some evidence without having the case it self available on the Internet but should be in the National Law Review.

Even Wikipedia reports on the case but stops at the January 2006 dismissal after prior cases also tossed etc.  It does not show the refiling of the case and the re trial that ended in February 2009. The link is http://en.wikipedia.org/wiki/Big_Apple_Oriental_Tours

I have had soemtimes weekly or more often notes from the owners especially Douglas Allen and some from Norman Barabash on the progression of the trials from about 2004                                                                

In July 2007 after the 2006 dismissal Douglas Allen tells me:
Judge Hayes rejected the request for a search warrant so the went to a feminist judge. Then he threw out the case twice. Now it is back for a third time and we think Judge Hayes is very annoyed with Eliot Spitzer for pursuing this case to the ridiculous.

Regarding the retrial here is parts of Allens report to me from January 2008:

The Attorney General filed an Article 78 in the Appellate Court charging our Judge with wrong doing and demanding his ruling of November 27th be reversed. They are also demanding he be removed from the case so that they can go judge shopping to find a feminist judge to convict us with. You can’t make this stuff up as the case gets sillier and sillier not to mention more costly. The State has all but lost this case and is starting to play dirty, we think, to save Eliot Spitzer rear end.

Venue has come up already and is another laughing stock. The State choose the venue for political reasons and now they need to bail out and go judge shopping to locate a feminist judge to rig the trial and more importantly  the instructions to the jury. A judge controls what is said and what is barred from a trial making it very difficult for us to win our case if a feminist judge is brought in.

The case can be tried in either Queens where Norman lives or Dutchess where I live. The State chose Dutchess where I live for political reasons, now they are stuck with it. The State did not want the trial in Queen’s because of the DA Richard Brown who went very public with our case to the media. Richard Brown said there is insufficient evidence to prosecute us and refused our case. . Eliot Spitzer doe not dare to embarrass Richard Brown so the venue is Dutchess where the DA William Grady refused to prosecute us as well but he is Republican so embarrassing him is no problem. However, all of the Judges are Republican with no need to agree with Spitzer a Democrat. Just a little side show as the venue will remain in Dutchess County unless the Appellate Court rules otherwise then the State is free to shop for a judge anywhere they can find one.
---
Dave in Phoenix comments:
Bottom line this shows even after the dismissal of charges from 2006 the case was retried.

I don't think these cases are available on the Internet at least I haven't found.  Douglas Allen told me the case should be written up in the National Law Review at some point and will be interesting what is included.

Again this is not a clear U.S. escort case. But the deciding factors as I have reported was there was no money paid for sex just for time (bar girl fine) so no prostitution conviction.

Again may not be the same result in another case. But at least we have one win related to money for time not sex. This is more than we have ever had before, even if situation is different than a U.S. escort case. But the issue of what your paying for is the same issue as escort cases.

Note I have blanket permission from the BAO owners to publish their e-mails to me and information since they want their win on money for time not sex to get broad attention from others in the legal community and escorts if it might help them with potential defenses.

I have been reporting on their case on my site since about 2004.

-- Modified on 3/30/2009 9:32:27 PM

The state has no right to appeal if the defendants were found "not guilty".

Are you saying that the previous judges dismissed the case "without prejudice" allowing the state to refile? Or are you claiming that the cases were previously heard by a judge and not a jury? That would make no sense as it would be a matter of "double jeopardy" to retry the defendants on the same charges.

A link to the complete story would give us a much clearer idea as to the facts of the case.

granted a motion to dismiss or made some kind of evidentiary ruling. The state generally may appeal a ruling in a criminal case if made before jeopardy attaches which is usually when the jury is sworn in and empaneled.

This is all I know:
Since 1996, the New York based human rights and feminist group Equality Now has lobbied the local District Attorney to take action against the company, complaining about promotion of prostitution and possible exploitation of minors. The District Attorney declined to prosecute in 2000, stating that the alleged acts did not occur in New York and were thus beyond the reach of state law. Supported by Gloria Steinem and Congresswoman Carolyn B. Maloney, Equality Now then contacted State Attorney General Eliot Spitzer in 2002.

In response to lobbying by these groups, the first legal action in the U.S. against a business of this type was initiated: Spitzer filed a civil suit against Big Apple Oriental Tours and obtained a restraining order in July 2003, in effect preventing the company from advertising.

Spitzer then made two unsuccessful attempts to charge owners Norman Barabash and Douglas Allen with promoting prostitution. (New York state penal code 230.25(1) defines promotion of prostitution, in part, as running a business that involves prostitution activity by two or more prostitutes [1].) The Attorney General's office obtained the first indictment of Barabash and Allen in February 2004. The case was dismissed in August 2004, because the grand jury had been presented with hearsay evidence and because the judge did not find the law applicable. The dismissal was upheld on appeal based on the hearsay argument. The case was returned to the grand jury and Barabash and Allen were indicted for the same crime again in October 2005. These charges were dismissed in January, 2006.

Then in 2007-2008 charges were refiled and in February 2009 the jury found both owner not guilty of prostitution since there was no money paid for sex, only a bar fine and payment for their time.

without any unedited information about the actual case, I don't see how any of it would apply to either a solicitation care or a case of prositution.

From what I gather, help me out here as I am not a lawyer, it sets no precedence, nor can it be referenced as any type of case law. It is a decision made by one specific jury in one case that may or may not relate to the laws against prostitution in this country.

Don't get me wrong, I want this to be true. I am an active hobbyist that would love a "get out of jail free card", it's just without a lot more facts to the contrary I don't see how this really opens any kind of legal door. Juries make bad, or at least questionable verdicts all the time.  I just don't see how this would apply to
anyone on this board.

It's still interesting and I would love a link to all the details, but I would like the details sans any type of editorial to go with it.

for many folks the valuable commodity is "companionship" NOT Sex..
what about the Women that goes on a big city trip & wants to hire a male companion to basically do "body guard type of work" open doors, eat dinner, travel from various locations in the city etc...Or the Women that hires another women as a travel companion?...I can assure.. no sex going on....what if someone has surgery out of town  & pays another person to be a companion.
what about the paraplegic that wants a pretty & nice lady to watch a DVD & order a pizza??  I can think of countless examples. of companionship & NO sex..