Disclaimers in Provider Ads -- Do They Negate Criminal Liability?

[ShysterJon]

A short caveat: My analysis in this post is limited to Texas state law only. Laws vary from state-to-state. To understand what the law is in your local jurisdiction, please consult a competent attorney where you live.

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I'm frequently asked this question:

"Would a disclaimer in a provider's ad be effective to negate a charge of prostitution, or as a defense to a charge of prostitution?"

My short answer to this question is no, No, NO! This was my answer yesterday. This is my answer today. This will be my answer tomorrow.

Let's review. Under Texas law, a person can commit the offense of prostitution in any of four different ways:

(1) making an offer to engage in sexual conduct for a fee,
(2) accepting an offer to engage in sexual conduct for a fee,
(3) soliciting a person in a public place to engage in sexual conduct for a fee, or
(4) engaging in sexual conduct for a fee.

For a disclaimer in an ad to be effective to get a provider off the hook for prostitution, the disclaimer would have to negate the provider's actual conduct. (Of course, if the provider didn't make or accept an offer, solicit, or engage in paid sex, the disclaimer is irrelevant because the provider didn't commit the offense in the first place.) A disclaimer negating conduct would be like me yelling at you at the top of my lungs, 'I AM NOT YELLING AT YOU!" That's silly.

Think of it this way. What if I always wore a T-shirt that said, 'Any herbs I smoke are legal and intended solely to soothe the pain from my glaucoma.' To me, my shirt is like a magic cloak that makes me invisible to every man or woman with a badge.

I go down to the M Streets where everybody seems to ingest herbs and I'm arrested for buying a dime bag. But I tell Barney Fife, "But look at my shirt, officer! It states what I'm doing is legal."

WTF!, you say. That makes no sense. That's right. And a disclaimer in a provider's ad is the same kind of nonsense. Whether a provider is guilty of the offense of prostitution is NOT determined by what she states in an ad before the conduct related to the offense even begins.

Here's another example. Suppose I post a hand-lettered sign on a rough board outside my shack in Mansfield that states: 'Aint be no guttin hear.' You read the sign and, all fears allayed, you push the squeaky gate and enter my homestead. I suddenly run at you wearing a leather mask and wielding a chainsaw and gut you, lickety-split. Your estate sues me for wrongful death. May I defend by pointing to my sign? Of course not, because my conduct in fact belied my disclaimer.

One final point about disclaimers. I have at times written about the difference between a criminal and a dumbass criminal. Eccie is dang full of criminals. Sterrett is chock full of dumbass criminals. Why are we here enjoying our bit of wingy-wangy while the homeboahs in Sterrett take it up the butt? Because we make better choices.

I've tried approximately 15 prostitution cases to verdict over the years. All my clients were found 'not guilty.' However, I would only suggest that my client roll the dice and go to trial if there was some weakness in the State's case, such as ambiguity in the offer or acceptance, inappropriate touching by the UC cop, or the arresting officer stretched the truth or outright lied. Those are all good issues on which to base a defense. But a disclaimer? Nope.

I can only imagine arguing with a straight face:

"Ladies and gentlemen of the jury. Yes, the State has an audio tape of my client, Dee Tension, agreeing to accept $100 to perform a sex act with Officer Gotcha. Yes, the prosecutor has a one-hundred dollar bill with Miss Tension's fingerprints on it. But Miss Tension is clearly not guilty because her ad on Backpage stated that money was for her time only!"

This would be a dumbass criminal argument, in my judgment, in its basis and in its effect. It's a loser legally and persuasively, in my view. In fact, it's such a barker that I'd risk alienating the jury by making such an argument. The jury could assume I think they're idiots if I thought they might buy into such a load of balderdash.

So you can keep on using your disclaimer like a magic T-shirt, if you want. Just don't be surprised if the jury thinks the emperor has no clothes.

[trojantide]

SJ, thanks, that's pretty much what I thought and I'm confident New York State isn't much different.
I never bring up activities or donation with providers. I get what I need from reviews and leave the donation where the girl can see it and don't hand it directly to her. If LE was able to gather enough evidence on how that all went down could there be a conviction even though nothing was ever communicated verbally or in writing except in setting up a time to meet (and maybe where and for how long)?

[ShysterJon]

Originally Posted by trojantide

I never bring up activities or donation with providers. I get what I need from reviews and leave the donation where the girl can see it and don't hand it directly to her. If LE was able to gather enough evidence on how that all went down could there be a conviction even though nothing was ever communicated verbally or in writing except in setting up a time to meet (and maybe where and for how long)?

Yes. In Texas, the fourth way to commit prostitution ("engaging in sexual conduct for a fee") is what lawyers call an "implied contract," meaning offer and acceptance is implied not by express statements of intent by the parties but by their conduct. It's harder to prove than the other three forms of prostitution, though.

A hobbyist might say to a female UC officer, "I'll give you $50 extra for Greek." Or a provider might say, "If you give me $100 I'll suck your dick." Or a provider might be standing on Harry Hines dressed like this:



...and say to an UC cop, "Wanna date?" Well, those are all instances of conduct that are hard to explain away. But implied-contract prostitution is different.

Here's a simple example: Every morning I walk into my neighborhood 7-11. I pick up a newspaper and hand the clerk $1.00 in change. I walk out. Not a word is spoken between us. Yet anyone watching would know the clerk and I had a simple contract with me as buyer and him as seller of a newspaper.

In the context of prostitution, the hard part for the State to prove implied-contract prostitution is the "watching" part. No sting I've ever heard of allowed an UC hooker or john to actually have sex (although there are many stories from Provider Urban Lore about rogue cops fucking then arresting girls). So the evidence would be testimony from either the hooker or john.

As I've written before, there is a special provision in the Texas Penal Code granting immunity to a witness who was a party to an incidence of prostitution, and a person can be convicted solely on the party's uncorroborated testimony. See:

Texas Penal Code section 43.06 - ACCOMPLICE WITNESS; TESTIMONY AND IMMUNITY.

But still, I can't think offhand of any case I've been involved with where a provider or hobbyist was charged with prostitution only because the other party decided to rat them out. The reason may be an example of the application of the nuclear war deterrence principle of MAD -- mutually-assured destruction -- to prostitution, based on the social stigma attached to the offense.

[trojantide]

Thanks. Yup, thats what I thought too. I guess it's far enough on the reasonably safe side that the risk is low. Especially with a reputable provider. I still wouldn't trust anyone completely. Anyone could be turned if the lawheads decide to lean on you hard enough.
(no offense SJ, I like your posts)

[ShysterJon]

Originally Posted by trojantide

I still wouldn't trust anyone completely. Anyone could be turned if the lawheads decide to lean on you hard enough.

Well, that would be a little different from what I was talking about. I HAVE been involved in cases where a provider or hobbyist cooperated with the police to make prostitution cases in exchange for leniency (nearly all of them involved turned hobbyists). Yet, there still was never actual, sexual conduct involved. The turned person was used to engage the target into discussions of money and sex.

[MartenWarner]

This reminds me of the dump trucks that have a disclaimer on the back that says, "Not responsible for broken windshields." Really? Most states have laws about securing your load.

The other says "Stay back 500 feet! Not responsible for broken glass." You can't order people to avoid you because you're dangerous no more than can a drunk driver say, "Stay away, I've been drinking and not responsible for accidents."

[ShysterJon]

Originally Posted by MartenWarner

This reminds me of the dump trucks that have a disclaimer on the back that says, "Not responsible for broken windshields." Really? Most states have laws about securing your load.

The other says "Stay back 500 feet! Not responsible for broken glass." You can't order people to avoid you because you're dangerous no more than can a drunk driver say, "Stay away, I've been drinking and not responsible for accidents."

Exactly.

[gucio]

That has been my understanding of those signs. completely meaningless, except to dissuade the gullible.

Another favorite of mine "Our insurance doesn't cover it", then you are in trouble, not me. ( I may have trouble collecting, but that's a different story )

I am equally amused by the disclaimers that "everything I write here is fictional etc."

Wouldn't that in effect be an admission that you are aware that you are breaking the law?

[Kloie]

They can even say will you reach back and grab me while we are doing it and you can get a charge!

[mirandalee]

I think the type of pictures that would be incrimidating are the ones where a woman is wearing lingerie, bra and panties, half naked pics then have a disclaimer lol..

[Cpalmson]

If one of the 4 elements of prostitution is ENGAGING in sexual conduct for a fee (or exchange of services), why aren't the police arresting married people or BF/GF who engage in sexual contact? If a husband (or wife) is the sole provider for the household while the other party relies completely on the other for their well being, isn't that a form of engaging in sex for a fee or service? What about the dating scene? Guy pays for dinner, flowers, and gift; girlfriend puts out later that night in return of the favor? I think it is very hard for LE or a DA to prove the ENGAGING in sex for fee. It just boggles my mind sometimes

[ShysterJon]

Originally Posted by Cpalmson

If one of the 4 elements of prostitution is ENGAGING in sexual conduct for a fee (or exchange of services), why aren't the police arresting married people or BF/GF who engage in sexual contact? If a husband (or wife) is the sole provider for the household while the other party relies completely on the other for their well being, isn't that a form of engaging in sex for a fee or service? What about the dating scene? Guy pays for dinner, flowers, and gift; girlfriend puts out later that night in return of the favor? I think it is very hard for LE or a DA to prove the ENGAGING in sex for fee. It just boggles my mind sometimes

1. Engaging in sex for money isn't one element of prostitution -- it's one TYPE of prostitution. Elements are various factual and legal propositions that the State must prove to show a defendant committed an offense.

2. The idea of prosecuting married people for prostitution is a topic that's been beaten to death here. If you're really interested in such mental masturbation, do a search.

[exoticdanceweardealer]

We can argue the clear absurdity of these moralist laws all day long but the fact will remain in the end that it is illegal until people finally become activists and convince the legislators which a few thousand people on this board from Texas are clearly too scared to do even if they believe in the concept.

What bugs me is, courts should accept the reasonable doubt that people pay for time and that the sex isn't always implied. From a hobbyist point of view, I think it would be especially stupid to ask for anything other than time and time alone. I can truly say that I have had experiences that even when offered, I turned down anything from occurring.

Any thoughts on the "Roses" or "Kisses" thing? I imagine it follows the exact same rules, I think I will show up to a providers door with a bunch of roses one day haha,,,

[ShysterJon]

Originally Posted by exoticdanceweardealer

Any thoughts on the "Roses" or "Kisses" thing? I imagine it follows the exact same rules,

Yes. That topic has been thoroughly discussed here. Search is your friend, friend.