Sheldon Gary McNEIL v. STATE of Maryland.
No. 131, Sept. Term, 1998.
Court of Appeals of Maryland.
Oct. 19, 1999.
739 A.2d 80
Ann N. Bosse, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, on brief), Baltimore, for respondent.
Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW*, RAKER, WILNER and CATHELL, JJ.
WILNER, Judge.
Petitioner, Sheldon McNeil, was convicted by a jury in the Circuit Court for Anne Arundel County of first degree rape, first degree sexual offense, kidnapping, and a number of lesser included offenses. He was given concurrent life sentences for
We are not concerned here, directly, with the facts underlying the offenses committed against the instant victim. It will suffice to say that on ample evidence, the sufficiency of which is not challenged, the jury necessarily concluded that McNeil came across the victim in Baltimore City, forced her into his car at the point of a knife, drove her into Anne Arundel County against her will, took her into a wooded area, forced her at knifepoint to commit fellatio, raped hеr, and then abandoned her.
The issues before us arise not from what happened to the victim but from McNeil‘s attempt two months later to engage an undercover Baltimore City police officer, posing as a prostitute in a sting operation, in certain sexual activity. Evidence obtained indirectly as a result of his arrest for that endeavor was used against him in the instant prosecution. The two issues presented to us, emanating from his unsuccessful effort to suppress that evidence, are (1) whether his conduct with respect to the undercover officer amounts to a crime under
BACKGROUND
As noted, the offenses against the victim were committed on May 17, 1996. On June 20, a similar attack was reported against another young prostitute. The descriptions given by the two victims of the assailant, his conduct, and his car were similar. The police were thus looking for a white male with a heavy build, brown hair, and a mustache, driving a blue Toyota with a radio installed upside down—the volume knob being on the right side—and with tears in the interior roоf lining, who preyed on young prostitutes. Both encounters began in Baltimore City and ended up in the same wooded
The operation involved several undercover police officers posing as prostitutes and “johns“—potential customers. The officers were looking to arrest both real prostitutes and real customers. The immediate cause of McNeil‘s grief was Officer Bernadette Giblin, posing as one of the prostitutes. Dressed for the occasion, Officer Giblin was pacing the 1800 block of McHenry Street (where the second victim had been abducted) when McNeil, driving a blue Toyota with a torn roof lining and a radio having its volume knob on the right, stopped, made eye contact with her, and gestured for her to approach the driver‘s side of his car. When she came over, he asked if she “was working,” which the officer understood to mean working as a prostitute. She responded that she was, and he asked her to get in the car. She agreed but first asked what he was “looking for.” He responded “half and half,” which, based on her training and her experience in this kind of operation, she took to mean half sexual intercourse and half fellatio. As she walked around the car to the passenger‘s side, she signaled the arrest team, and McNeil was arrested and taken to the police station.
Sergeant Clark, waiting at the station, was allowed to interview McNeil. At some point, the sergeant took McNeil to a police station in Anne Arundel County and questioned him about the two rapes. McNeil denied any involvement and specifically denied having sex with anyone on May 17. He was photographed and, upon his written consent, was taken to a local hospital for hair, blood, and saliva testing. He was then driven to what he said was his cousin‘s home, where he wanted to go, and was released. McNeil does not contend that he was still under arrest after he left the City police station; it appears that he voluntarily accompanied Clark upon his release from custody in Bаltimore City. A few days
McNeil‘s motion to suppress was very broad and devoid of details. He apparently meant it to encompass all evidence obtained by Sergeant Clark—from his observation of the blue Toyota, from the search of that car and McNeil‘s apartment, from the forensic tests, and from any statements given by McNeil—on the theory that all of that evidence emanated from his unlawful arrest by Officer Giblin. The State seems to accept that premise. It makes no argument that any of that evidence would survive suppression if the arrest was, indeed, unlawful, and we shall therefore proceed on that assumption.
DISCUSSION
Introduction
(a) to keep up, maintain, or operate any place, structure, building, or conveyance for the purpose of prostitution, lewdness, or assignation;
(b) to occupy any such place2 for the purpose of prostitution, lewdness, or assignation or to permit any such place to be
(c) to receive or offer or agree to receive any person into such a place for the purpose of prostitution, lewdness, or assignation or knowingly to permit any person to remain there for such a purpose;
(d) to direct, take, transport, or offer or agree to take or transport any person to any such place or to any other person with knowledge or reasonable cause to know that the purpose of such directing, taking, or transporting is prostitution, lewdness, or assignation;
(e) “[t]o procure or to solicit or to offer to procure or solicit for the purpose of prostitution, lewdness or assignation“;
(f) to reside in, enter in any such place or remain in any such place for the purpose of prostitution, lewdness, or assignation; or
(g) to engage in prostitution, lewdness, or assignation by any means.
The three relevant terms—prostitution, lewdness, and assignation—are defined in
“The term ‘prostitution’ shall be construed to mean the offering or receiving of the body for sexual intercourse for hire. The term ‘lewdness’ shall be construed to mean any unnatural sexual practice. The term ‘assignation’ shall be construed to include the making of any appointment, or engagement for prostitution or lewdness or any act in furtherance of such appointment or engagement.”
Although the record before us does not specify, anywhere, the particular offense Officer Giblin charged McNeil with committing, he has assumed throughout that the charge was under
At the appellate level, he narrowed his assumption even further and asserted that he was arrested for soliciting for prostitution. From that premise, he has added the new, and quite different, argument that only the prostitute or possibly her procuring agent can be convicted of that offense—that it does not apply to a potential customer of the prostitute. In an unreported opinion, the Court of Special Appeals addressed that argument and affirmed. The court held that, under
In his petition for certiorari, McNeil raised the question whether evidence was “unconstitutionally obtained from Petitioner because the undercover officer posing as a prostitute lacked probable cause to believe Petitioner was committing the crime of soliciting for purposes of prostitution.” As subsidiary issues, he asked whether “the crime of soliciting for purposes of prostitution appl[ies] to a prospective customer of a prostitute” and whether, assuming that a prospective customer “can commit the crime of soliciting for purposes of prostitution,” the facts of this case establish probable cause to believe that he was committing that offense. The question, of course, assumes that McNeil was, in fact, arrested for soliciting for prostitution. In its answer to the petition, the State seemed to accept that assumption, arguing that the Court of Special Appeals “correctly concluded that a prospective cus-
Once again, because of a lack of care in the framing and acceptance of issues—the failure to examine the record to make sure that there is a clear factual underpinning for the issue raised—we are in the position of having accepted jurisdiction over a case to address an issue that may have no factual basis. The question raised by McNeil—whether a prostitute‘s prospective customer can properly be charged with solicitation for the purpose of prostitution—does not necessarily arise with respect to solicitation for the purpose of lewdness or assignation under
Were we inclined to agree with McNeil that the offense of solicitation for the purpose of prostitution does not apply to the conduct of a prospective customer, we would most likely have recalled the writ of certiorari and dismissed the petition as improvidently granted. As we do not agree with that view, however, we shall address the issue framed by him and, at least in its answer to the petition, accepted by the State.
Statutory Intent And Construction
The principal issue before us is purely one of statutory interpretation—the scope and meaning of
As noted,
A second strand of his argument, based on the most cursory historical analysis, is the assumption that the 1920 Legislature that enacted the predecessor to
McNeil may well be correct in ascribing an unfortunate gender bias to members of the 1920 General Assembly, for it was in that session that the Legislature refused to ratify the 19th Amendment to the United States Constitution, affording women the right to vote. But whatever social or political perspective may have induced that result, the evidence does not suggest a pernicious double standard with respect to the law in question here; indeed, when the entire enactment is read together, in harmony with the zeitgeist in which it was enacted, the only reasonable inference is to the contrary.
The 1920 law dealing with prostitution was not a legislative afterthought. It was, instead, part of a movement that was national in scope and that had a considerable history, both in Maryland and elsewhere. It is not necessary for us, in this Opinion, to recount the full history of efforts to combat
We may begin by observing that, under English common law, although prostitution itself was not a crime, lewdness was punishable. Blackstone reports as an “offense” cognizable by the temporal courts “open and notorious lewdness: either by frequenting houses of ill fame, which is an indictable offense; or by some grossly scandalous and public indecency, for which punishment is by fine and imprisonment.” He notes also that, in 1650, the “repeated act of keeping a brothel” and a second conviction for “committing fornication” were made felonies without benefit of clergy, but, at the restoration of Charles II, “it was not thought proper to renew a law of such unfashionable rigour,” and those offenses were thereafter “left to the feeble coercion of the spiritual court, according to the rules of the canon law.” WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND, Vol. IV, Ch. 4, XI, at 64 (1769). Under Blackstone‘s conception of “lewdness,” which differs considerably and is far broader thаn as defined in
Although such women also could be prosecuted under a variety of laws, including those against adultery and fornication,7 as a general rule prostitution itself was not prosecuted criminally in Maryland or other States prior to the end of the 19th Century. Rosen notes that “[b]efore the Progressive Era, Americans condemned prostitution but did not classify it as a criminal offense” and that “[s]ocial disapproval of prostitution was expressed through sporadic and unofficial harassment.” In the 18th and early 19th centuries, she reports, the harassment was carried out mainly by gangs that acted as a kind of informal police and that “punished prostitution as they punished other violations of community standards, by mob attacks.” THE LOST SISTERHOOD, supra, at 4. She continues that, by the mid-19th Century, “the task of harassing prostitutes had been taken over by the professional police departments just then being formed in major cities” and that prostitutes, madams, and procurers could be arrested, at the
Beginning near the end of the 19th Century, however, and continuing through the first two decades of the 20th, societal interest in prostitution sharpened, leading to the enactment of specific anti-prostitution laws of one kind or another in most of the States. The scholars, who are not always in agreement with one another, posit several causes and impetuses for the movement, some focusing on the plight of the women entering and populating that profession, others on the penumbral ills thought to emanate from its increasing commercialization. Decker suggests five spurs: (1) a zealous moralistic campaign against vice generally; (2) an offshoot of the growing temperance movement—the linking of prostitution with the abuse of alcohol, especially in the brothels; (3) attempts, mostly on the part of women‘s organizations, to combat the double standard that demanded continence from women, but not from men; (4) concerns over the spread of venereal disease, which many attributed to prostitutes; and (5) a belief that there was organized trafficking in women for the purpose of prostitution. PROSTITUTION: REGULATION AND CONTROL, supra, at 67-69. There was also a concern over political corruption emanating from the brothels. A Vice Commissiоn appointed in Maryland, of which we shall say more later, reported in 1915 “an incontestable fact that the disreputable saloons, gambling houses, houses of prostitution and disreputable furnished room houses [in Anne Arundel and Baltimore Counties] were all assured protection, provided they paid a certain sum of money or a certain pecuniary equivalent.” MARYLAND VICE COMMISSION REPORT (1915), Vol. 4 at 1.
Prostitution followed quickly on the heels of the European settlements on the East Coast, the expansion westward, and Chinese immigration to the West Coast. Though practiced in the rural areas, it became more prevalent and more noticeable with the urbanization and industrialization of America, as young women emigrated from Europe or left the villages and farms in the United States to find work in the burgeoning
The lot of these women was not always an easy one. Many of those who did not marry well or were not otherwise adequately supported by their families worked long hours for bare or sub-subsistence wages in domestic service or as laundry or factory employees. Melding into the economic imperatives facing some of those women was what Langum has characterized as the “alarming liberalization in sexual habits and attitudes, at least among young people of the working class.” CROSSING OVER THE LINE, supra, at 17; also THE RESPONSE TO PROSTITUTION IN THE PROGRESSIVE ERA, supra, at 28-47. Langum and the Bulloughs note the greater number of men over women in the cities, leading some women to “flock[] to the dance halls and other places of amusement, often as a means of finding male companionship, and the open sexuality of their behavior, the new and untraditional dance forms, the drinking, and the hugging and kissing in public, shocked middle-class Americans.” CROSSING OVER THE LINE, supra, at 19-20; WOMEN AND PROSTITUTION, supra, at 216. The perceived loosening of the higher moral values then expected of women was noted in Maryland as well, particularly in Baltimore. As noted by PAMELA HAAG, “COMMERCE IN SOULS“: VICE, VIRTUE, AND WOMEN‘S WAGE WORK IN BALTIMORE, 1900-1915, 86 Md. Hist. Mag. 292, 293 (1991):
“Victorian conceptions of the ‘scarlеt woman,’ foundered in the drastically transformed urban culture that reform-minded Baltimoreans confronted in the early twentieth century. With a population of 450,000—a 100 percent increase from 1870—Baltimore in 1913 displayed a panoply of cul-
tures and ‘public women,’ female wage earners who walked the streets, socialized in dance halls and alleyways, adorned themselves with make-up and, with these traits, complicated the urban middle class‘s attempts to understand their morality with the anachronistic nineteenth century terms of virtue and vice....
Progressive reformers—all college-educated, predominantly of the professional or entrepreneurial classes, dramatically represented in Baltimore‘s Social Register—found Baltimore‘s newly incorporated economy and the ‘lights and shadows’ it generated profoundly disturbing and compelling.”
The jolt to Victorian values from this general activity may, itself, have generated some of the reform movement that eventually turned its attention to the more pernicious “social evil” of prostitution, but the increasing commercialization of that calling was a particular, and possibly the more significant, sрur.8 As Rosen observes:
“Although prostitution had always been a commercial transaction, the striking changes in the scale of its commercialization just before the turn of the century made it seem especially dehumanizing and most flagrantly immoral. It
had evolved from a small-scale, informal operation to a highly organized business that reaped vast profits and maintained connections with numerous third-party agents, including liquor interests, landlords, police, and politicians.” THE LOST SISTERHOOD, supra, at 42; see also PROSTITUTION AND MORALITY, supra, at 96.
Reports began to surface—some exaggerated, some well-founded—of girls and young women being imported into the country from Europe and sold into economic and physical bondage as prostitutes; hence the notion of the “white slave.” As early as 1875, the United States prohibited the importation of women for the purpose of prostitution (Act of Mar. 3, 1875, ch. 141, 18 Stat. 477 (repealed 1974)), and, in 1905, the Senate ratified an international treaty aimed at curtailing the trafficking of women for that purpose. International Agreement for the Suppression of the White Slave Traffic, May 18, 1904, 35 Stat. 426, 1 L.N.T.S. 83. Sensational stories, fanned by the news media, of the domestic interstate trafficking of women for prostitution and of young girls being held in confinement in brothels eventually led to enactment in 1910 of both State and Federal legislation aimed at curbing that activity. With only token opposition, Congress enacted the
land Legislature, in the same year, enacted a comprehensive pandering law making it a felony to place a female in a house of ill fame or assignation against her will for purposes of prostitution, to place a female in a house of prostitution for immoral purposes (even if not against her will), to receive money for procuring or placing a female for the purpose of causing her to cohabit with a male person, to knowingly receive anything of value, without bona fide consideration, from the earnings of a woman or girl engaged in prostitution, to detain a girl оr woman in a house of prostitution because of debts she contracted while living there, or to transport a woman or girl in any conveyance for the purpose of prostitution. See 1910 Md. Laws, ch. 25 at p. 92. Those provisions, as subsequently amended, now are codified as
Apart from the attempt to control the “white slave” traffic through the
The reform movement was never of a single mind as to how best to control prostitution. Some were determined to abolish the practice entirely; others sought to adopt the system in vogue in some European cities of regulating prostitution by requiring that it be practiced in licensed brothels, where the women could be medically examined on a periodic basis; some desired to have the brothels concentrated in specific “red light” districts. Although the regulationists were initially in the ascendancy, by the end of the 19th Century the movement to regulate waned and the abolitionists predominated. THE LOST SISTERHOOD, supra, at 7-13; WOMEN AND PROSTITUTION, supra at 222-224. The attack on the brothels did not produce the desired result, however, and, in some respects, was coun-
Between 1910 and 1920, cities and States throughout the country began creating vice commissions to examine the problem. At least 44 such commissions existed, including, as noted, one in Maryland, appointed by Governor Goldsborough in 1913. The Commission consisted of 14 persons, and it proceeded to make a comprehensive study of prostitution in Baltimore City, Anne Arundel and Baltimore Counties, and the cities of Frederick, Hagerstown, and Cumberland. In its 1915 five-volume, 800-page report, the Commission documented many of the circumstances and trends noted by similar commissions in other States and, ultimately, by the authors cited above. Although many of the doctors, lawyers, and other citizens the Commission surveyed recommended segregating, but tolerating, brothels, the Commission itself took a different approach, insisting that all brothels be closed and that the law target all third parties who profited from the work of the prostitutes. It summed up its view thusly:
“The effort should consist in trying to suppress the third party concerned, that is, the person who is profiting by the immorality of others; who is commercializing it for his own gain; who is inducing men and women to have the sex relation in order that his11 income may be increased; and
who is stimulating the traffic beyond the bounds to which it would be carried by the natural sex instinct.” Id. at 445-446.
The Commission expressed the belief that “there is sоmething fundamentally wrong with the character and mentality of the majority of women who accept the life of a prostitute” and doubted that there was “very little chance of reformation” for most of them (id. at 174), but its overall view seemed to be sympathetic to the prostitutes, if not to the madams, pimps, and other intermediaries. The Commission reported that poverty, low mentality, separation, immorality of one or both parents, and alcohol were the predominant factors in their family background, and that those who had been married before becoming prostitutes reported separation, non-support, marital disharmony, alcohol, and mistreatment. It was able to persuade 266 prostitutes to submit to medical examinations and found that 257 of them suffered from either syphilis or gonorrhea. See MARYLAND VICE COMMISSION REPORT, supra, Vol. 1 at 105. Throughout its Report, the Commission noted the multiple vulnerability of the prostitutes.
Although the Commission‘s clear principal aim was at the madams, pimps, and other procurers and intermediaries—including cab drivers, waiters, hotel bellboys, bartenders, and apartment janitors—rather than the prostitutes or their customers, the immediatе legislative response was directed at the female prostitutes. It may be that the General Assembly thought at the time that the intermediaries had been sufficiently targeted and dealt with through the 1910 legislation on pandering and that the problem was one of law enforcement. By 1916 Md. Laws, ch. 653, the Legislature added to § 866 of the public local laws of Baltimore City, dealing with vagrants and vagabonds, a provision declaring that “every female person who shall solicit or procure or attempt to solicit or procure or who shall walk the streets for the purpose of soliciting or procuring any male person or persons to engage in sexual
Immediately upon the enactment of this public local law, the Baltimore City police began arresting women as “common prostitutes“—the statutory term. See REPORTS OF THE BOARD OF POLICE COMMISSIONERS, supra (1918) at 32; (1919) at 34. In 1918, by 1918 Md. Laws, ch. 83, the Legislature made it a Statewide misdemeanor to transport or aid or assist in transporting any person over any public way, in a public conveyance for hire, for purposes of prostitution or any other immoral or lewd purpose. It also, by 1918 Md. Laws, ch. 84, made it a statutory nuisance to maintain any place for purposes of lewdness, assignation, or prostitution. Such a nuisance was subject to abatement by injunction, upon petition by the State‘s Attorney, the Attorney General, or any citizen, and, upon any violation of an injunction, the violator was subject to a finding of contempt punishable by imprisonment for not less than three months nor more than six and a fine of $200 to $1,000. That approach, of using the civil law to abate the brothels, was then a common one among the States, having been inaugurated by Iowa as early as 1909. See WOMEN AND PROSTITUTION, supra, at 283.
It is with this background that the Legislature, in 1920, enacted what is now
The contrast, simply in language, with the 1916 approach is significant. Also significant is how the 1920 law was immediately perceived by the law enforcement community. Until advised otherwise by the Attorney General in 1922 (see 7 Op. Atty. Gen. 103), the Baltimore City police operated on the assumption that the 1920 Act did not abrogate by implication the 1916 public local law, so they enforced both. In 1920, they arrested 253 females and no males as common prostitutes under the 1916 law, but arrests were reported for 50 males and no females for “Prostitution, Lewdness and Assignation” under the 1920 law. REPORT OF THE BOARD OF POLICE COMMISSIONERS, supra (1920), at 34. The same pattern is revealed for 1921. See id. (1921) at 35. After being informed by the Attorney General that the 1916 law had been superseded, the arrests were only under the 1920 law, and the Reports show that a significant number of men were arrested. See id.
We concluded as much in Lutz v. State, supra, 167 Md. 12, 172 A. 354. The issue there was whether the 1920 law had repealed by implication the common law offense of keeping a bawdy house, for which the defendants had been arrested and convicted. After comparing the common law and statutory offenses, we held that they were directed at different objects—that the common law offense dealt with the specific nuisance of maintaining “a blatant and noisome establishment for licentious commerce, irrespective of whether such commerce involved hire or payment,” whereas the statute “is directed at the suppression of sexual vice and perversion practiced for gain, and condemns equally those employed in connection with the commerce, the patrons of the establishment used therefor, and the keeper thereof.” Id. at 16-17, 172 A. at 356 (emphasis added). As McNeil points out, Lutz was concerned with bawdy houses, rather than solicitation for prostitution, but it does indicate our view, 65 years ago, that the legislative intent was to achieve the “suppression of sexual vice and perversion practiced for gain” by punishing “equally
The case principally relied on by McNeil is In re Appeal No. 180, 278 Md. 443, 365 A.2d 540 (1976), a case that, in fact, supports our view that the law applies to those who solicit prostitutes. A 15-year-old girl approached an undercover male police officer and offered to perform sexual intercourse with him for $25. For that conduct, she was found to be a delinquent child, on the premise that, had she been an adult, she would have been guilty of soliciting for prostitution under
We found thаt argument “interesting and esoteric,” but not persuasive. We held that the word “solicit,” as used in
“1. to ask or seek earnestly or pleadingly; to beg; to entreat; as, we solicit your support, he solicited them for help.
2. to tempt or entice (another) to do wrong.
3. to accost (another) for some immoral purpose, as a prostitute does.
4. to disturb; to disquiet. [Rare.]”
Any one of the first three definitions would suffice as an “ordinary meaning ... understood and used by the general public.” Even the third, which has the closest nexus to the issue before us, references a solicitation by a prostitute only as an example, not as a limitation. An entreaty, or offer, by a potential customer also qualifies as an accosting for some immoral purpose.
Given the historical background of
McNeil calls our attention to In re Carey, 57 Cal.App. 297, 207 P. 271 (1922), cited by us in Appeal No. 180, as well as People v. Jones, 245 Ill.App.3d 810, 185 Ill.Dec. 832, 615 N.E.2d 391 (1993), State v. Chandonnet, 124 N.H. 778, 474 A.2d 578 (1984), and People v. Anonymous, 161 Misc. 379, 292 N.Y.S. 282 (1936) as supporting his view that
The other cases cited by McNeil, and a number of others not cited by him, do, indeed, construe the statutes at issue in those cases as not applying to the conduct of a potential customer. Most of those cases are distinguishable on their facts. They either construe statutory language that is unlike
People v. Anonymous, supra, is of little value. For one thing, it is the decision of a single magistrate sitting in Brooklyn. Interestingly, it notes an earlier decision of the Court of General Sessions, People v. Edwards, 180 N.Y.S. 631 (1920), reaching the conclusion that the New York equivalent of our solicitation law did, indeed, apply to the conduct of the customer, but declares that decision dicta and declines to follow it. We are more persuaded by the 1920 dicta, enunciated at the very time our Legislature was considering the statute now before us. The New York statute at the time declared that “a person” who in any manner induces, entices, or procures a person to commit acts of lewdness, fornication, unlawful sexual intercourse, or other indecent acts was a vagrant. The Edwards court declared that “a person” includes men as well as women, and that “a man who induces, entices, or procures a woman to commit prostitution, either with himself or another, is a vagrant, and the man who aids or abets or participates in the commission of prostitution by a woman is a vagrant, and in either case is equally guilty as the woman.” Edwards, supra, 180 N.Y.S. at 634-35. The court in Edwards went on to state a truism that beаrs repetition 80 years later:
“The court is aware that it has been the custom heretofore followed to arrest the women and let the men go; but the time has come when the custom cannot longer be permitted to continue.... The practical application of the law as heretofore enforced is an unjust discrimination against
women in the matter of an offense which, in its very nature, if completed, requires the participation of men.”
We note that, in addition to California, the District of Columbia has interpreted its solicitation for prostitution statute as applying to the conduct of the customer and has affirmed convictions of customers for soliciting undercover police officers posing as prostitutes. See Thompson v. U.S., 618 A.2d 110, 112 (D.C.App.1992) and cases cited therein.
Probable Cause
As an alternative argument, presented in the context of whether there was probable cause for his arrest, McNeil contends that, even if
JUDGMENT AFFIRMED; APPELLANT TO PAY THE COSTS.
ELDRIDGE, J., and RAKER, J., concur in the result only.
RAKER, Judge, concurring:
I join in the judgment of the Court affirming the judgment of conviction of Petitioner for the crimes of first degree rape, first degree sexual offense, kidnapping and the lesser included offenses. I agree with the majority‘s conclusion that probable cause existed to support his arrest, and accordingly, the
To the extent that the majority еxercises its discretion to consider the issue as framed by Petitioner, i.e., whether the offense of solicitation for the purpose of prostitution applies to the conduct of a prospective customer, I agree with the majority‘s conclusion that the statute includes the customer. However, I do not see the need for its unnecessary discussion of the history of prostitution, and I do not share its approach to the historical presentation and some of the inferences and innuendo it suggests. The plain language of the statute and the comparison between the 1920 statute and the 1916 statute lead to the conclusion that the statute includes the conduct of the customer.
I agree that historically the criminal justice system has treated female prostitutes and the male customers differently. Nonetheless, I would refrain from attempting to recount a historical perspective of this subject.1 If we are to engage in an historical study to answer the question presented in the certiorari petition, i.e., that of the treatment of the customer under the statute, we should focus on the treatment of the customer throughout history, аnd not the salesperson. I agree with the observation of Ruth Rosen in The Lost Sisterhood, that the “subject of prostitution ... can function as a kind of microscopic lens through which we gain a detailed magnification of a society‘s organization of class and gender: the power arrangements between men and women; women‘s economic and social status....” R. ROSEN, THE LOST SISTERHOOD: PROSTITUTION IN AMERICA, 1900-1918 at xii (1982). She noted, in my view, correctly, that “writing history from ‘above‘—from the perspective of reformers who attempted to
Having made the determination to look at the history of prostitution, it is important to explore the perspectives of the feminists and indeed, the prostitutes, “in order to achieve a broad understanding of how Americans of different classes and different sexes experienced and viewed prostitution.” Id. See, e.g., M. Baldwin, Split at the Root: Prostitution and Feminist Discourses of Law and Reform, 5 YALE J.L. & FEMINISM 47, 84 (1992); T. Clements, Prostitution and the American Health Care System: Denying Access to a Group of Women in Need, 11 BERKELEY WOMEN‘S L.J. 49, 56 (1996); B. Cooper, Prostitution: A Feminist Analysis, 11 WOMEN‘S RTS. L. REP. 99 (1989); H. Fechner, Three Stories of Prostitution in the West: Prostitutes’ Groups, Law, and Feminist “Truth”, 4 COLUM. J. GENDER & L. 26 (1994); A. Lucas, Race, Class, Gender and Deviancy: The Criminalization of Prostitution, 10 BERKELEY WOMEN‘S L.J. 47, 49 (1994); A. Stremler, Sex for Money and the Morning After: Listening to Women and the Feminist Voice in Prostitution Discourse, 7 U. FLA. J.L. & PUB. POL‘Y 189, 196 (1995). Prostitution is far too complex to be viewed solely from the perspective of the Victorian reformers.