That’s not really fair, that’s like saying it’s illegal to walk around with a brick because you’ll have to prove to a jury (after you’re arrested) that you weren’t going to toss it through a window. The question wasn’t about whether or not you can prove you weren’t going to have sex with the person offered $5 to flash you, it’s about if it’s illegal to make the offer, hand over the money and have her flash you. You’re twisting things around.
Suit yourselves.
You’re absolutely wrong.
I assume we’re discussing California’s Penal Code 647. And it’s possible that simply reading the statute, one might believe you were on the right track: prostitution is defined therein as “any lewd act” between two persons for money or its equivalent.
You might then think to yourself, “Well, displaying breasts is a lewd act, so offering to pay to see breasts is a solicitation of a lewd act.”
And you’d be wrong. Because that construction of “lewd act” is simply too vague to survive as a criminal statute. In the criminal law, statutes must clearly define illegal conduct, so that the public is given specific notice of the conduct that is prohibited.
That was my opinion.
But as it happens, it’s an opinion informed by doing a lot of criminal law once upon a time. I was confident that the California courts would have said something similar.
And, hey! Pryor v. Municipal Court, 599 P.2d 636, 655 (Cal. 1979):
So the law criminalizes only a solicitation of sexual touching.
Now, you seem to be suggesting that a finder of fact could, on a record that was limited to a solicitation to expose breasts, nonetheless find guilt by inferring that the actual request was for touch.
No. That’s not the way criminal law works. A criminal conviction must rest on proof beyond a reasonable doubt of each and every element of the crime. The record must contain evidence from which a finder of fact can conclude that touching was requested. In the hypothetical presented by the OP, there is none.
I invite you to present even a single actual example of a criminal conviction for solicitation resting on such an offer, with no other evidence.
Any such conviction would be rejected by the appellate court with muscular vigor for insufficiency of the evidence.
Now, I grant that the scenario might create probable cause for arrest. Probable cause is a much lower standard. And of course, an arrested person might make some inculpatory admission along the lines of agreeing he was trying to solicit touching. So I agree that an arrest would be defensible, and could lead the police to develop sufficient evidence for a conviction.
But if the only evidence at trial is the scenario in the OP, then that is, as a matter of law, insufficient for conviction in California.
If your jurisdiction isn’t California, then obviously this doesn’t apply…but I would be surprised to learn of any jurisdiction that criminalizes this conduct. If you contend another state would allow a criminal conviction on this record, let’s hear the state.
Not believe it.
What specific sexual assault statute is violated?
To be clear: I’m disputing the"prostitution" and “sexual assault,” angles.
It’s possible that the OP’s scenario could be conspiracy to commit indecent exposure, or something. I’m not saying it’s safely legal – I’m saying it’s neither prostitution or sexual assault.
Question: I understand that under certain circumstances, enticement becomes an issue. For example, excessive promotion of alcoholic consumption by a bar would be enticement. Does paying somebody to do an illegal act automatically make conspiracy applicable? Does conspiracy apply to misdemeanors as well as felonies?
Illinois…where the governors make our license plates…:dubious:
One of us has a license to practice law in California and actually does so. (That would be me.) One of us does not. (That would be you.) Had someone acted on the advice you gave, they would be doing time. It is most assuredly against the law in California to demand the seeing of breasts in exchange for a consideration. Far less will get you prosecuted in California. There is a “it was a jest” doctrine, but that never flies.
California is very strict on sexual harassment of any nature. This ain’t Mardi Gras in New Orleans, or your typical House of Representatives Congressman’s Office in D.C…
The opinion below is how it typically works in real cases. This is not a published opinion. Nine out of ten opinions in California are not published. But this kind of decision is exactly why I would advice against the OP’s conduct.
So, please, proceed.
When I lived in NYC, back in the late 80s, I passed through Penn Station on my way to and from work. One of the “regulars” there was a middle-aged homeless lady whose breasts ended about 6" below where her t-shirt ended. She’d go up to an unsuspecting man and shove them into his face, while yelling “Get a look at these jugs!!!” I never saw her get into trouble with the cops.
Sure:
The jury heard testimony that the accused asked Shelia to both flash her breasts (legal) AND TOUCH THEM HERSELF (not legal).
Certainly the jury can conclude that the offense included solicitation to touch: it’s in the record.
You’re correct that I am not licensed in California. But If you have any case in which the jury hears no evidence of touch, convicts, and such a conviction is upheld – published or otherwise – I’d like to see it.
And I’ll hazard a very confident guess, Second Stone, that although you’re licensed in California, you don’t practice criminal law. Am i right?
I don’t practice criminal law. And I’ll hazard a guess that you don’t actually practice law and haven’t for decades. The case is directly on point, the jury can conclude that she touched her own breasts by the mere act of moving her top.
In California, $5 to show me your breasts is solicitation. In my jurisdiction, what they do in Mardi Gras (show me your titties and throw beads) is a crime. We do not do Mardi Gras in California, not because we don’t love titties, we do, but because it is a crime. This is a factual answer to the OP and it varies on jurisdiction. Sexual harassment, which is civil, is well within my usual practice. You cannot offer $5 to strangers to show breasts in California without getting in all sorts of legal trouble. It is solicitation, disorderly conduct ( I don’t personally deal with criminal cases) and civil suits, which I do deal with. I do sit through arraignments and sentencings while waiting for a combined calendar. They do prosecute men who seek prostitutes in this state.
Now I see that all sorts of people want to argue with this factual answer. And if they have a jurisdiction where it is legal, go right ahead. But if in California you want to go up to a homeless person and shout “$5 to see your titties!” let’s alert the police, the news truck and the local bar association first and see what happens.
So, do, proceed further.
Actually, they have done so, such as for several years in San Jose, and indeed, beads were exchanged for bobbies and indeed, there was no arrests for that. Mind you, it got out of control, there was violence, and the official celebration ended- but there’s still cruising on that day and still boobies are flashed.
Technically illegal, maybe.
And while that’s a nice cite, we need to point out the context: (Bolding mine)
While carrying out his law enforcement duties as a San Bernardino County Sheriff’s deputy, defendant Matthew Linderman preyed on numerous vulnerable women by exhorting sexual favors in exchange for prosecutorial leniency. Defendant appeals from judgment entered following jury convictions for sexual battery by restraint (Pen.Code, § 243.4, subd. (a) FN1; count 2); 11 counts of soliciting a bribe (§ 68, subd. (a); counts 3, 4, 5, 7, 9, 11, 13, 15, 17, 19, 24); two counts of solicitation to engage in lewd conduct (§ 647, subd. (a); counts 6, 18); and **oral copulation under color of authority **(§ 288a, subd. (k); count 8).FN2 The trial court sentenced defendant to a 20–year prison term.
Honestly Count 6 was gravy. If there hadnt been over a dozen other serious charges the flashing would likely have been forgotten.
But still illegal.
Mardi Gras show me your titties is fun and games, but illegal in California if they want to prosecute.
And yes, the guy in the case I cited was some kind of amazing scum, but it is against the law.
Hassling a homeless woman is not fun and games. It’s a crime.
[QUOTE=The Second Stone]
oral copulation under color of authority
[/QUOTE]
Too long for a band name, but a cult B-side track.
Please note that I was quoting the court, I did not write that. And yes, I can see that as a name for a band.
Unless it has already been said/ Another vote for:
Solicitation for Prostitution
If there was no sexual component to the morons desire to humiliate the panhandlers ($5 if you dance a jig), he’d just be another dick in the crowd.
I would go strictly for harassment. And probably if he didn’t take no for an answer the first time and the act was repeated.
In New Jersey it would have to be a very wide interpretation of the law. One that won’t get past the prosecutor’s review. The law states specifically that there must be an offer to exchange for something of economic value sexual activity. “Sexual activity includes, but is not limited to, sexual intercourse, including genital-genital, oral-genital, anal-genital, and oral-anal contact, whether between persons of the same or opposite sex; masturbation; touching of the genitals, buttocks, or female breasts; sadistic or masochistic abuse and other deviate sexual relations.”
Now you might say, “Well look it says ‘but is not limited to’” and you would be right. That’s why I said you could charge given a wide interpretation of the law. But since the lewdness statutes does not define exposing as a sexual activity I think it would be a stretch.
Thread title edited to indicate subject.
Please use descriptive thread titles.
Colibri
General Questions Moderator
Would you be able to support this assertion with anything approaching reliable facts?