For those of you who did not respond to my prior scenario which I thought was quite entetaining the question still remains: if there is no discussion regarding money until the end of their time together is it still prostitution and will LE of either sex really go that far?
If you arrive at the location and before any discussion ask to take a shower and ask the other person to join you what would their response be and where does that put you?
Since I have never been anywhere close to a LE scenario and since indications are that activity is increased I just want to know.
In the state of California, LE is guilty of the crime of rape if he/she engages in sexual intercourse while on-duty, and in an official capacity of a law enforcement officer. §261(c)(7)CPC. Upon conviction, the officer could face a term of 25 years to life in the state prison.
-- Modified on 7/1/2003 12:32:23 PM
cop will never get in trouble for that,cops, rape, assault and kill ,steal, drink on duty under the guise of police work,,,and even when they get they rarely get in trouble,odds are a cop can break many heinious crimes and get paid by tax dollars,,internal affairs will cover things up...if a cop says you are a hooker then you mere existance is a crime and he can threaten you to do something,,then when you still do not violate the law,you still get arrrested & convicted based on a lie
Dr.OBGYN's reading of the law is incorrect. CPC §261(c)(7) does *not* say that any sexual intercourse by an on-duty officer in his capacity as an officer is rape. Instead, it says that sex obtained by a public official (including police) by threatening to use his official authority "to incarcerate, arrest, or deport the victim or another" is rape. There is no "on-duty" requirement, either.
An officer who conceals his job status simply cannot violate this rule, since a provider who doesn't know he is a cop is not being coerced by authority she does not know he has. A cop can have sex as part of a vice investigation without violating this law. (There might be other rules to prevent such conduct, but this law is not an obstacle.)
As for the original question -- yes, it is still illegal. Trading sex for money is prostitution. Offering to trade sex for money is solicitation of prostitution. These are distinct crimes, and it is possible to commit either without committing the other. The hypothetical is a situation where there is no solicitation, but that does not alter the nature of the act as long as it is done with the understanding that it is an exchange of sex for payment.
As you know there is a lot more to a statue than what is written verbatim, e.g. case law. There are volumes of case law that have evolved from this section. A recent case that comes to mind occurred last fall. The incident involved a vice officer who met with an in-call prostitute while on duty. After he failed to get a violation, he identified himself as a police officer and gave her a warning. He asked her if he could see her again on a personal basis. She agreed, fearing she might be subject to arrest if she refused.
He returned to her apartment within the same week and engaged in sexual intercourse. He was under surveillance by Internal Affairs, and was arrested upon leaving the girls apartment. She was interviewed by the Internal Affairs detectives who listed her as a rape victim. The district attorney’s office filed rape charges against the officer, CPC §261(c) (7). During the trial a representative from the police department testified that an officer is not permitted under any circumstances to have any sexual contact with a suspected criminal. He went on to say that if an officer were to merely touch the covered breast of a suspected prostitute, he would have committed a sexual battery.
He was convicted by a jury trail and sentenced to 15 years to life. At the sentencing, the judge chastised the convicted officer and reminding him that it is never acceptable for a police officer to have sexual relations with a suspected criminal under any circumstances.
The conviction was based on the prostitute’s assumption that she was avoiding arrest by having sex with the officer.
The officer was well represented by a very competent defense attorney who I have known for many years.
If you are in law school and aspire to practicing law, you will have to develop the ability to distinguish between rumor and reality. Forums like this are wrought with wild rumors, most of which embrace the government conspiracy theory. I have practiced criminal defense law exclusively for the past 25 years, and I am still amazed at some of the text that is posted on these boards.
-- Modified on 7/2/2003 11:19:19 AM
I too have practiced criminal law for several years, and I stand by my analysis.
Your original post said "LE is guilty of the crime of rape if he/she engages in sexual intercourse while on-duty, and in an official capacity of a law enforcement officer." This implies that an undercover cop who has sex with a provider while posing as a client has committed rape -- which is what the original question asked. It's not true.
As I explained, CPC §261(c)(7) requires that the officer use his authority to threaten "to incarcerate, arrest, or deport the victim or another". An undercover cop simply cannot do this because he has not revealed his authority at all. It really is that simple.
The case you describe does not contradict what I said. In fact, it is perfectly consistent. The cop in that case used his authority to intimidate the provider. Even if he didn't make an *express* threat, the coercion was still there and it resulted from his status as a police officer. He evidently intended for the woman to feel threatened, so he was guilty as charged. What he did fit the crime as I explained it. What he did may not have fit the explanation you provided, though, since it is not clear that he was on duty when he went back.
An off-duty cop can obtain sex by coercion just as easily as one who is on duty, and doing so violates the rape statute. Your original message said the statute applies if he acts "while on-duty, and in an official capacity of a law enforcement officer." A cop who does this on his day off is surely not acting in his official capacity and is not on duty, but he is still violating the statute.
You say that the expert witness testified that "it is never acceptable for a police officer to have sexual relations with a suspected criminal under any circumstances". Fine. But there is a big difference between "not acceptable" and rape. As I said, there may be rules that bar an undercover cop from having sex as part of an investigation, but the rape statute you cited isn't one of them.
The expert may be right about contact with a covered breast being sexual battery, but sexual battery also is not rape. The statute you cite is only about rape. (I don't understand why an expert was allowed to explain the law to the jury anyway. That's what the judge is supposed to do.) The penalty you cite is also for rape.
Then again, the expert may be wrong. Is an undercover cop who talks his way into a provider's home guilty of trespassing? Why would talking her into allowing minor contact with a clothed breast be so different? Besides, you must know that what an expert says on the stand is not equivalent to case law. You began your newest post by saying my understanding was incomplete because I don't know the cases, but all you cite to prove your point is an opinion paid for by a prosecutor. Not the same thing.
If an on-duty cop pretends tricks a provider into sex by leading her to believe he's not a cop, then she could argue he obtained the sex by fraud. Good argument, but obtaining consensual sex by fraud is not rape except in the *very* rare instance where the fraud convinces the victim that the perpetrator is her husband. See People v. Harris (1979) 93 Cal.App.3d 103.
As I said, I stand by my prior post. And I won't condescend like you did by concluding someone must be a mere law student simply because he did not accept a (mistaken) legal analysis from someone who claims to know better.
-- Modified on 7/3/2003 11:57:56 PM
After all, based on what I've seen, it must happen all the time.
Gentlemen,
What is case law vs. verbatim law except for the spin we put on it. Both of you put on a convincing argument, that is the beauty of the adversarial system that we have.
Kudos to BOTH of you,
Let a judge decide or at the very least arbitration...
I've heard conflicting stories about how far a vice cop will go prior to making an arrest.....i.e. is he/she allowed to get naked; can he/she kiss or hug the suspect; and then of course the biggie...is he/she allowed to have sexual contact (BJ, HJ, intercourse?)
Thanks in advance!
I think there are a couple of safe answers to that. 1st, the theoretical one, ahem, it depends on the jurisdiction. 2nd, the practical one: all life is a risk, and you can control the facts better than you can control the law. While I think most cops (and most people) usually are more inclined to tell the truth, there's enough exceptions to screw up anybody's life. I have seen cops, and entire departments, take the stupidest or most corrupt actions, and then lie thru their teeth about it. I can't imagine an individual with the resources to fight that.