legal 5.03

Under Cover and Under Duress

Earlier this month (as described in this issues' "Tales of the Darklady" ) a woman working for an escort service went to a prearranged hotel room to meet a date and was forced into sex at gunpoint. After these events, both the woman and the escort service were worried about whether she faced possible prosecution as a prostitute if she reported the crime. When the police gave the impression that, to them, this was "the price of being a prostitute," neither the woman nor the service management were reassured.

Under Oregon law, "prostitution" occurs when one person engages in, offers, or agrees to engage in sexual conduct or contact for a fee. "Sexual conduct" is intercourse. "Sexual contact" is pretty much everything else, manual or oral. (There has to be touching involved; stripping for a guy while he's watching isn't prostitution, even if he pays.)

Now, many people believe that the cops aren't allowed to lie about whether they are cops, and that if they do, the prostitute may claim that he or she was entrapped into the crime. Prostitutes therefore sometimes ask potential customers if they are cops. Some people also believe that if one of the people doesn't really mean it when they make the offer (because they aren't going to go through with it) then there is no "agreement" and no crime. Neither one of these things has ever been true. Not here and not anywhere else. The crime is complete when the soon-to-be-defendant makes the offer, or agrees to someone else's offer. This is why cops can, and do, use decoys.

Cops can lie in the line of duty; that's what being an undercover cop is all about. (Curiously, Portland police do have regulations against touching prostitutes or exposing themselves. In the rules that govern the way things are done at the cop shop, touching is worse than lying. Go figure. Portland police have been getting around the regulation by using hired civilians to act as informants and infiltrate escort services. The informants are allowed to have sex with escorts at public expense in order to build up the case and prove that certain escorts are prostitutes. Your tax dollars at work!)

These "defenses" won't work if and when somebody gets busted. But a woman who is threatened at gunpoint isn't engaging in sex for a fee, she's engaging in sex because the guy has a gun. She's "agreeing" to sex in the same way that any rape victim "agrees." And "I'll do it, just please don't kill me" is not a valid agreement in the eyes of the law because of an idea called "duress."

"Duress" means that conduct which would otherwise be a crime (except murder) is not criminal if a person does it because someone else uses, or threatens to use, physical force "of such a nature or degree as to overcome earnest physical resistance." So, agreeing to have sex with someone is not criminal (even if the john pays for it afterward) if the "agreement" results from a physical threat, because it's the result of duress.

So, if something goes wrong on a date and he pulls out a gun, don't be afraid to go to the cops. They may be rude about it, but it's better than letting some sicko keep up his act. I don't want to give anyone shivers, but if an escort doesn't report this sort of thing, the guy may get the idea that he can get away with it again. What's to stop him from asking for the same escort a second time, using a different name?

For your own good, for the good of sex workers who need and deserve protection, and for the good of the community, please don't be afraid to stand up for your rights. If you are victimized, make the call. Even if the cops are rude, maybe it will be easier on someone else the next time.

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