Oral Argument in the Mark Strong Zumba Prostitution Case

I just listened to the State of Maine v. Mark Strong oral argument at the Maine Supreme Court. They do a live stream of the arguments now which is pretty great. The State appealed the Justice Nancy Mills' order granting the defense motion to dismiss 46 counts of "Violation of Privacy" and the Law Court took the case on an extremely expedited basis. Attorney Dan Lilley argued for the defense and Patrick Gordon for the State, each did a nice job. I was kind of shocked to learn that it was Gordon's first oral argument. He is a really smart and pretty hilarious guy, great work by him.

Fighting Crime by Publicizing, Prosecuting and Victimizing Victims: The Mark Strong Prostitution Case

Author's Note & Update 4/25/13: This post was originally published 1/31/13, several weeks before the Mark Strong trial was resolved. It has been the source of some controversy, probably because I come of sounding like a jerk who is accusing the prosecution of a grand scheme to unfairly punish the johns. That's not what they were trying to do and to the extent that the post serves to attack those people, that is not fair of me. I know the prosecutors involved and respect them as professionals who have never treated me or my clients unfairly. With the benefit of hindsight, several things are worth pointing out:

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.

Maine Prostitution Charges: Misdemeanor and Felony

Photo credit: Taberandrew /Creative Commons

Prostitution has been in Maine news a lot lately. There are at least three high profile cases right now: a Zumba instructor who may have offered services that her sign did not advertise, a man alleged to have invested in that prostitution business, and another prostitution ring operator who now faces federal charges for extorting money from a customer who circumvented the business and transacted with the girls directly. The complaint in that case is a pretty great read. It all gets one thinking about what Maine's prostitution laws actually prohibit and, what penalties can be imposed.

Maine's Prostitution Laws:

The Law is codified in Title 17-A, Chapter 35 and the statutes there prohibit "Engaging in Prostitution," Engaging a Prostitute" "Promotion of Prostitution" and "Aggravated Promotion of Prostitution." Only aggravated promotion of prostitution can be charged as a felony; the remaining charges are misdemeanors. While they aren't the most serious crimes, the stigma of being charged may be the most significant sanction for those accused.

Engaging a Prostitute:

People are charged with this if the prosecution believes that they were a prostitute's customer. A person engages a prostitute by "providing or agreeing to provide, either to the person whose prostitution is sought or to a 3rd person, pecuniary benefit in return for a sexual act or sexual contact as those terms are defined in section 251." This is probably the charge that the Zumba clients will face.

Engaging in Prostitution:

If the prosecution believes that a person was working as a prostitute, they can be charged with engaging in prostitution. The law provides that Prostitution "means engaging in, or agreeing to engage in, or offering to engage in a sexual act or sexual contact, as those terms are defined in section 251, in return for a pecuniary benefit to be received by the person engaging in prostitution or a 3rd person."

Sentences for most Prostitution Offenses:

A first offense for either crime is a Class E misdemeanor. That class of crime is normally punishable by up to $1000 in fines and 6 months in jail. Until 2013, the law explicitly provided that only a fine could be imposed and no jail time was allowed for a first offense of engaging in prostitution or engaging a prostitute conviction. In the wake of the Zumba case, the law was changed and now first offense engaging a prostitute can be punished by jail time. First offense engaging in prostitution is still punishable by a maximum $1000 fine and no jail.

If a defendant has a prior conviction for these offenses in Maine or another State within the past 10 years, the crimes becomes class D misdemeanors punishable by $2000 in fines and up to 364 days in jail. Until the 2013 law change, the "look back" period was only 2 years meaning only a prior conviction within the past 2 years would count to increase a new charge. Now, the look back has been increased to line up with other other Maine statutes (like Operating Under the Influence) which punish second offenses more harshly if the defendant has a prior conviction within the past 10 years.

More Serious Charges, Promotion of Prostitution:

The more serious offense is promotion of prostitution and aggravated promotion of prostitution. One promotes prostitution by:

1. Causing or aiding another to commit or engage in prostitution, other than as a patron;
2. Publicly soliciting patrons for prostitution...;
3. Providing persons for purposes of prostitution;
4. Leasing or otherwise permitting a place controlled by the defendant, alone or in association with others, to be regularly used for prostitution;
5. Owning, controlling, managing, supervising or otherwise operating, in association with others, a house of prostitution or a prostitution business;
6. Transporting a person into or within the State with the intent that such other person engage in prostitution; or
7. Accepting or receiving, or agreeing to accept or receive, a pecuniary benefit pursuant to an agreement or understanding with any person, other than with a patron, whereby the person participates or the person is to participate in the proceeds of prostitution.

Violation is a Class D misdemeanor punishable by $2000 in fines and up to 364 days in jail. If the defendant "promotes prostitution by compelling a person to enter into, engage in, or remain in prostitution; or ... Promotes prostitution of a person less than 18 years old" they commit the crime of Aggravated Promotion of Prostitution. This is a class B felony punishable by $20,000 in fines and 10 years in prison.