Friday, October 19, 2012

Prostitution Prosecution Proves Problematic, Possibly

"I take the fifth!"

Prostitution in the Press:

Even though actual prostitution charges are about as minor a criminal offense as possible, a lot of people have something to say about the Alexis Wright scandal. BDN blogger Alex Steed has a bit about slut shaming, Gawker has done a nice piece compiling the available Alexis Wright videos.

Image from Gawker.com

The Portland Press Herald had initially taken the moral high ground by refusing to print the names on the list when the identities could not be confirmed. They quickly devolved into some pretty standard pillorying once the middle initials and addresses were released.

Still, nothing I have read really says much about the legal issues at play here. As the story develops, I expect that this will make the case even more interesting.

Prostitution Cases Can be Difficult to Prove:

As far as I can see, the prosecution has some real practical problems that will make it hard to convict many of the Prostitution Patrons. See, they really wanted to make a splash with a lot of charges of some high profile figures and so the ADA charged a bunch of guys with Engaging a Prostitute. In any particular case the State needs to prove that the man paid for sex. But what proof with there be:
  • The defendant can't be called as a witness against themselves at trial because the fifth amendement prohibits that. 
  • The only other witness to the encounters was (probably) Alexis. She can't be forced to testify about having sex or about making money because she faces charges related to both of those things. 
  • The records Ms. Wright kept would be pretty good evidence, but for business records to be admissible at trial, a "custodian of records" needs to authenicate them. Alexis is likely the only custodian and so those probably are not coming in without her testimony.
Of Course there are ways to get around some of these issues. The most obvious is to get defendants to make statements to the police admitting they paid for sex. Those statements, or recordings of them, can just be recited at trial and that's all the proof a jury needs.

Defendants have the Right to Remain Silent. So Don't Talk to the Police!:

This is why it is so important for people charged with crimes to keep their mouths shut. When the cops tell you: "it will be easier for everyone if you just tell us what happened" what they are really saying is: "it will be almost impossible to prove this case unless you confess."

Every case is unique and there is a lot more to it than that. But, in the end, the defendants who keep quiet, might get out of this without a conviction and some will be able to avoid ever getting charged. The ones who "did the right thing" and came clean might be rewarded with a nice write up in the paper and a criminal conviction to boot.