Minnesota Statute Section 609.324 Subdivision 3 states: "whoever intentionally does any of the following…hires or offers or agrees to hire an individual 18 years of age or above to engage in sexual penetration or sexual contact." So…what types of behaviors can be viewed as a violation of the prostitution laws? In order to know what acts are lawful, one needs to understand that which the law prohibits.
A crime is not unlike a recipe. Ingredients are essential to any recipe's success. Similarly, a crime is composed of different "elements," and in order for a defendant to be convicted the government has the burden to prove each and every element of the crime "beyond a reasonable doubt."
The elements of prostitution are: 1) an individual intentionally hires, offers or agrees to hire; 2) and individual 18 years of age or above; 3) to engage in sexual penetration or sexual contact. Minnesota Statute Section 609.321 defines "sexual contact" as either 1) the intentional touching by an individual of a prostitute's intimate parts or 2) the intentional touching by a prostitute of another individual's intimate parts." Sexual penetration is defined as "sexual intercourse, cunnilingus, fellatio, anal intercourse, or any intrusion however slight into the genital or anal openings of an individual's body by any part of another individual's body or any object used for the purpose of satisfying sexual impulses. Emission of semen is not necessary." One need not have any physical contact with another person, let alone sexual intercourse, to violate Minnesota's prostitution law. All the government must show is that an individual "hired, offered or agreed to hire someone (over 18 years of age) to engage in sexual contact or sexual penetration. As such, the best line of defense is that an agreement to engage in sexual contact penetration never occurred.
Minnesota Courts have consistently held that prostitution is an "inchoate" offense, meaning that the mere offer of sexual services or the agreement to engage in sexual contact/penetration is a crime regardless of the defendant's intent to act upon the offer or agreement. As the Minnesota Court of Appeals stated in 1979: "the state is not required to prove that the defendant actually intended to have intercourse, all that the state had to prove was that the defendant intentionally agreed or offered to engage in sexual contact/penetration for hire." The crime of prostitution does not require any physical contact; the crime has been committed long before any "action" takes place. The crime makes the offer, agreement or the act of hiring someone to engage in sexual contact/penetration an act of prostitution. Physical contact is more evidence that an act of prostitution occurred. This begs the question, what type of offers or agreements can be viewed as prostitution? Again Minnesota Appellate Courts are prepared to answer this query.
It goes without saying that an explicit offer to engage in sexual contact/penetration would be considered prostitution. Saying things like: "I'll give you $40.00 for a blow-job" would certainly qualify as an explicit offer to engage in sexual penetration for hire. Such an offer is a crime. However, situations exist, such as when hiring an escort off the internet, where there is no spoken offer or agreement for sexual contact or penetration, what then?
When dealing with an escort, especially from the Internet, from the start the "hobbyist" is appraised that any fee is paid for the escort's time only, and that any sexual contact is the product of two consenting adults. Money is set-aside in an envelope and is never actually "exchanged." Most escorts won't tolerate sexual conversation or explicit sexual questions. However, the escort and "hobbyist" usually engage in some form of sexual contact (French without a translator leading to a Russian finish perhaps??). Is this prostitution?
An offer or agreement need not be spoken in order for the state to prove an act of prostitution. In State v. Bennett, (1977) the Minnesota Court of Appeals concluded that "the offer need not be expressed, but may be implied from the words and actions of the defendant taken in its context, but the evidence must demonstrate, beyond a reasonable doubt, the defendant's intention to engage for hire in sexual activity." Simply put, the government will closely examine all of the circumstances surrounding the arrest, including spoken words and physical actions, in order to prove an offer or agreement to engage in sexual contact/penetration. Thus, when hiring an escort, the state will examine her web site, the circumstances of the encounter, the location of the encounter as well as the physical acts that occur in order to prove prostitution. The government usually does not have the time or resources to investigate escorts, but has ample resources to set up sting operations on the streets.
Police have undercover operatives walking the street posing as available ladies. These officers are free to make offers for sexual contact/penetration, saying such things as "$20.00 for a blow-job, $50.00 for a fuck." Any conversation with these officers will be tape recorded and monitored by numerous agents in various automobiles prowling the area. Should an individual fail to either make a counter-offer or reach an agreement to engage in sexual contact/penetration for hire, the act of prostitution has not been committed. Not to be deterred, undercover officers are persistent, almost coercive, in their zeal to ferret out the scourge that is prostitution. These officers are expected to make arrests, and any trick or lie they can use in furtherance of their objective is authorized and approved. Don't fall victim to these police tactics no matter how good the lady appears.
The conclusion reached is that the best defense to a prostitution charge is that there was no agreement or offer to engage in sexual contact/penetration. In these situations, the defendant usually remained ambiguous in his conversation with the escort/undercover officer. These individuals, never reach an agreement to engage in sexual contact/penetration for hire, claiming they "need to think about it," or "just get in the car so we can discuss this matter further." Absent either direct or implied evidence of an agreement or offer to engage in sexual contact/penetration for hire, the state will be have difficulty proving the act of prostitution.