Cops Can Legally Lie in Sting Solicitation/Prostitution Cases.

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The former Chief of Police for a city near Minneapolis, Minnesota, was charged last month with solicitation of prostitution in a sting operation orchestrated by police officers in a different jurisdiction. Since recently disclosing his arrest to city officials, he has resigned. According to the arresting agency, Steven Smith was charged after he responded to a sexual ad implicitly offering sex for money – 10 others were also arrested in the same sting. Although the charge is likely to remain a misdemeanor (punishable by a maximum of 90 days and a $1,000 fine), the state’s Police Officer Training Board would have probably viewed the case with an eye towards revoking his peace officer’s license. Smith has pending court obligations.

COMMENT: Minnesota has prostitution laws very similar to most states in the nation. Because most people are arrested for this offense before the act, the charge is often called “Solicitation of Prostitution” The state defines a prostitute as “an individual who engages in prostitution by being hired, offering to be hired, or agreeing to be hired by another individual to engage in sexual penetration or sexual conduct. “Sexual contact” means the intentional touching by an individual of a prostitute’s intimate parts; or, the intentional touching by a prostitute of another individual’s intimate parts. The “solicitation” aspect involves an “offer” to provide or receive the requested service for money. The actual act of sex is not necessary to complete the crime- just the offer (emission of semen is not required). Misdemeanor cases pertain to a person providing the service that is at least 18, or the charges can turn into felonies.

What happens when the police officer’s conduct during the arresting process is outrageous? In some states, a “fundamental fairness” argument, a concept inherent in the due-process requirement of the constitution (state or federal), can be used to prevent a conviction for prostitution. A defendant might make the argument that he/she was induced into committing the offense owing to the officer’s conduct. However, such arguments often fail because the courts have said that the conduct must be “outrageous” and “few” cases would rise to that level. For example, one court has denied this argument where the cop first exposed himself before the act. Similarly, the same court held that an officer’s request to “splash on her tits” (the prostitutes) before the prostitute accepted the offer, was not sufficiently outrageous to bar the defendant’s conviction for engaging in prostitution. When the officer’s conduct involves the initiation of sexual contact that is not required for the collection of evidence to establish the elements of the offense, the conduct may be sufficiently outrageous.  Can an undercover cop lie about being a police officer?: Yes. The focus is on the behavior of the police which is necessary and appropriate to gain a conviction; if the cop is attempting to dissuade the defendant from thinking he/she is a cop, he can do it. Can a cop have sex with the prostitute and then charge her with the crime? We have been told that such cases would probably never reach a prosecutor’s desk; in the first instance, both the cop and prostitute would be guilty of the act; the actual act of sexual contact or penetration is not required to complete the crime- the crime occurred before the conduct, so the cop’s actions are not outrageous from the perspective of preventing the prostitute from being charged and unnecessary for any legitimate police work from the cop’s defense perspective.



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