Prostitution Stings—An Effective Enforcement Tool or Entrapment?


Are sting operations, which involve undercover officers and a target, an effective enforcement tool or the epitome of the coercive conduct which that due process (or “fundamental justice” in Canada) seeks to prohibit?

For our not-so-legal-savvy readers, “entrapment” occurs when an agent, or officer, of the state coerces or forces a target into committing a crime with the aim of prosecuting that target for the crime; and, absent the coercion, the accused would not committed the unlawful act (see law.cornell.edu for the full definition). It might be prudent to note that coercion can be mild or severe; a simple verbal suggestion, without physical force, can entrap a person. When deciding whether entrapment occurred, it is crucial to consider whether or not the crime would have occurred if there had been no undercover officer in the picture, so-to-speak. The implications, on a broader application of such techniques (the proactive enforcement of the law), are high. Sting operations are seemingly effective tools, employed on a pervasive-basis in the United States and Canada, for combating a range of criminal activities. If these techniques are challenged, and subsequently deemed unconstitutional, new strategies will need to be explored and committed to policy—thereby having the potential to cause a sizable disruption to law enforcement, and opening a window of impunity.

The opinions I express here stem from the recent arrest of an alleged prostitute who clandestinely advertised her services under the guise of being a sausage-seller (no pun intended)—several news outlets dubbed the alleged prostitute the “Hot Dog Hooker.” Authorities in New York arrested the alleged prostitute through this very method. An undercover officer nabbed 47-year-old Cathy Scalia, the alleged prostitute, when he pretended to purchase a frank. According to a report of the incident, the undercover officer asked about her sex-for-pay services. In response, Scalia supplied the officer with her contact information and they, later, met in a hotel room; she was subsequently arrested and charged, under state law, with giving an ‘unlicensed massage’ and soliciting for sexual intercourse.

Why does the entrapment doctrine exist? I will look at case-law (judicial decisions) and principles of criminal law to give reasons for the entrapment doctrine.

(1) American Legal System

Constitutional mandate, namely ‘due process,’ prevents the states from arbitrarily imprisoning law-abiding subjects. Moreover, for the commission of a crime, all states require ‘intent’—the willful commission of the act. The entrapment defense was conceived in Sorrells v. United States (see Sorrells v. United States, 287 U.S. 435 (1932) for the judgment), and, yet again in Jacobson v. United States (see Jacobson v. United States, 503 U.S. 540 (1992) for the judgment). The concept seeks to protect an innocent person who was coerced or forced by the state’s officers to commit an offense. When we look at intent, in the lightest scrutiny, we can clearly see that a commission must be ‘willful’ (as emphasized above); in another way of expressing it, the act must result from one’s free will, and one’s desire for harm, without undue influence from the state. Someone who has been entrapped—coerced by the state—could not have acted in a such way that was consistent with his or her will and desire; to entrap someone, thus, amounts to arbitrarily imprisoning him or her, again, because—in light of the coercion—no intent existed and, in turn, no crime could have been committed.

To demonstrate that entrapment did not occur, the state must demonstrate that there was an inherent ‘predisposition’ to commit the crime; that means it must be proven that an accused would have committed the crime, even in the absence of the state’s intervention. That is not an easy task, especially when the highest U.S. court ruled that the existence of criminal history, in and of itself, cannot prove predisposition (see Sherman v. United States, 356 US 369 (1958) for the judgment). That decision is merely one among many recent developments in this jurisprudence.

(2) Canadian Legal System

Entrapment in Canada, known as ‘duress’ or ‘compulsion,’ revolves around two spheres: the same principle of ‘intent’ described in the preceding, and the Charter of Rights and Freedoms (constitutional law).

The ‘duress defense’ (or compulsion) is the equivalent of its American counterpart. In the appeal R. (Regina) v. Ruzic (see R. v. Ruzic, 2001 SCC 24 for the judgment) before the Supreme Court of Canada, Justice LeBel, writing for the unanimous court (for lay-persons: a “unanimous court” occurs when all nine justices agree with one view), wrote:

It is a principle of fundamental justice that only voluntary conduct — behaviour that is the product of a free will and controlled body, unhindered by external constraints — should attract the penalty and stigma of criminal liability. Depriving a person of liberty and branding him or her with the stigma of criminal liability would infringe the principles of fundamental justice if the person did not have any realistic choice.

As the Canadian jurists opined, and agreed, in that appeal, if the act was induced (and, ergo, not an act of free will), there can be no stigma or criminal liability (guilt) imposed on an accused. Doing so would offend the ‘fundamental justice’ guarantee. The ‘fundamental justice’ guarantee, of the Charter, is the equivalent of the ‘due process’ guarantee, of the U.S. Bill of Rights.

Conclusion: Was Cathy Scalia Entrapped?

Obviously it depends on details to which I, at this time, have no access. Given the initial media reports, it would be safe to make some inferences—at least in the meantime, until court documents and affidavits become public domain. Given the details we have, one detail that stands out is that the officer’s solicitation, by asking if sex-for-pay services were available, prompted Cathy Scalia to provide her contact information, leading up to the ‘unlicensed massage’ and ‘offer for sex-for-pay’ in a private setting. To reiterate for emphasis, even if Scalia solicited the officer, the officer solicited first when the officer pretended to purchase a sausage and inquired about the service. It was the officer’s solicitation—not Scalia’s—that instigated the chain of events that would later unfold and manifest into Scalia’s unauthorized practice, of giving an ‘unlicensed massage,’ and arrest.

The imperative question, the ‘make-or-break’ factor, is whether a predisposition existed here. The underlying question is: had the officer not inquired about sex-for-pay, would Scalia have provided her contact details and arranged to meet with the officer in private? If the undercover officer was, instead, an unsuspecting customer, would Scalia have solicited the customer? Remember: the existence of a history of solicitation—or any crime for that matter—cannot be the sole factor in showing predisposition because of Sherman v. United States (see supra). So the fact that Scalia was previously convicted for solicitation cannot be used against her.

I find that a predisposition did not exist. It is, by mere virtue of the operative’s approach—as opposed to a prostitute approaching a bait operative—coupled with the officer’s inquiry as to her services, that the predisposition must be ruled-out in these circumstances. Granted, Scalia was not physically coerced or limited to a single option—she could have the refused the officer’s advance—but it would be unrealistic, I argue, given Scalia’s socioeconomic status and prior hardship. According to media reports, Scalia is a mother of four teenage boys; her sole source of income, apparently, is selling sausages at a stand. At her arraignment, Scalia claimed the she was “[financially] broke,” and “[had] no job;” but, as some might retort, do those statements not suffice to show predisposition? Again, I answer in the negative. Any reasonable woman, having been in Scalia’s financial predicament, may have been tempted and entrapped, rather easily, into accepting an appealing offer—a decent sum of cash for an hour, or so, of sexual intercourse; and not because the hypothetical reasonable woman is a prostitute, but because she required the income and had no realistic alternative. For Scalia, and others in her unfortunate circumstances, refusing an offer by a ‘john’ is an unrealistic choice, since it will inevitably result in a lost opportunity for income and, consuequently, more hardship. These sting operations, against women like Scalia, target women of low socioeconomic status by tempting them into selling their bodies. The epitome of entrapment.

Did Scalia have the alternative choice to refuse? I opine yes. Was the alternative choice a realistic one? I opine no. Cathy Scalia was entrapped by the undercover officer. My conclusion, unfortunately, does not secure Scalia’s freedom. Her freedom hinges, instead, on the jury’s answer to those questions.

Update: No jury trial. Scalia entered a guilty plea–probably on the advice of her attorney, if she obtained the service of an attorney.


© 2013 THE ADVOCATE’S GAVEL (licensed under CreativeCommons)

Advertisements