Tactics in prostitution stings raise questions
YORK, Pa. (AP) — Inside the bedroom, Heather Strausbaugh sat talking with her client — the conversation ranged from nightlife and bars to their families. The man seemed nervous. But, eventually, he took off his clothes and laid beside her on the bed. That’s when she began to massage his leg and touch his genitals.
Minutes later, police officers barged through the front door, and saw the young woman, naked holding a blanket wrapped around her body, and the man she had just been in bed with was walking toward them.
He was an undercover police officer. Now, Strausbaugh was under arrest.
The West Manchester Township Police Department received reports that “something fishy” had been going on in the home. And they even found an online ad confirming their suspicions.
It featured alluring photos of a woman who offered “a more professional, truly not rushed, discreet service.” The post mentioned that an hour consultation was “80,” but did not include a dollar sign. And the listing was on Backpage.com — a website that the U.S. Department of Justice would later describe as the internet’s leading forum for prostitution ads.
Strausbaugh argued that what she had been doing was legal — there was never an exchange of money for sex. But a jury disagreed, finding that what had been happening was clearly prostitution.
So if that was true, she wondered in a recent interview, shouldn’t law enforcement have had their case more than 20 minutes before they barreled through her door — before the police officer took off his clothes, before she undressed and climbed into bed with him, before she started touching his leg and long before she began touching his genitals?
“I had posted an ad. I had arranged to meet him,” said Strausbaugh, 28, of Heidelberg Township, shifting in her seat as she recounted the details of her case. “If all of that made me guilty, then that should have been enough. At what point do they stop?”
A York Daily Record/Sunday News investigation into undercover prostitution stings in south-central Pennsylvania has found several recent cases that raise questions about whether police officers needed to go as far as they did to make an arrest and successfully prove the crime beyond a reasonable doubt:
— On several occasions, police officers took off all, or most, of their clothes. In one case, a woman masturbated an undercover detective for “several minutes” before law enforcement made the arrest.
— Prostitution is one of the lowest-level offenses in the crimes code. Several of these cases ended with someone being sentenced to probation or ordered to pay fines and court costs.
— Police departments that made these arrests seldom had written policies about how to conduct prostitution investigations — or, if they existed, the guidelines did not outline what conduct is prohibited.
— The lack of policies — and latitude that police officers are provided under the law — has created the potential for abuse. Every time a person is prostituted, experts say, he or she is further victimized.
‘There was no need for the officer to participate in the sexual activity’
In Pennsylvania, prosecutors must prove that a person “engaged in sexual activity as a business” to convict him or her of prostitution.
The Pennsylvania Superior Court examined the question of whether someone needed to actually have sex to be found guilty of prostitution in 1980.
In the case, Trooper Donald Fredericks of the Pennsylvania State Police Vice Squad went to a hotel in Delaware County and arranged for a woman to give him a massage on May 31, 1978.
She eventually agreed to perform oral sex for $55, and she undressed. Fredericks gave her the money and then placed her under arrest.
The woman was found guilty of prostitution. But she challenged the sufficiency of the evidence because she “did not actually engage in any intercourse.”
That argument didn’t change the minds of the three judges.
“There was no need for the officer to participate in the sexual activity to the extent of having intercourse,” President Judge Edmund B. Spaeth Jr. wrote in the opinion.
Police departments and their policies . or lack of policies
The York Daily Record filed Right-to-Know Law requests with more than 25 police departments in Pennsylvania, including all of them in York County, for copies of written memos, procedures and policies on how police officers are to conduct prostitution investigations.
Many did not have policies. One emphasized that it rarely encounters prostitution in its jurisdiction.
But other police departments that have recently conducted these investigations did not have any policies, either.
‘There’s certain things the government shouldn’t engage in’
Tom Kelley, a defense attorney in York, likened prostitution cases to undercover drug investigations. It’s not a perfect comparison. But police officers, he said, don’t actually have to use the drugs to prove the crime.
Kelley previously served as first assistant district attorney and was on the York County Court of Common Pleas from 2004 to 2015.
“You wouldn’t put an undercover police officer, a female, soliciting johns, and actually have her go through the act. Why? Because that would be appalling,” Kelley said. “The same can be said for actually allowing someone to masturbate you.”
Sometimes, he said, police officers have to be smarter than their adversaries. The justification that “it’s hard to prosecute otherwise” is like the justification that waterboarding is necessary to obtain confessions.
“To me, there’s certain things the government shouldn’t engage in. It’s difficult to prosecute these types of cases — that’s not the standard by which we govern our police behavior,” he said. “You know what? Try harder. You have the entire wealth of the state behind you.”
‘How important is a single prostitution arrest?’
The Northern York County Regional Police Department has found a different way.
Police officers are prohibited from engaging in sexual activity — the only justification would be if their personal safety is in immediate jeopardy — under a general order called “Investigating Human Trafficking” that went into effect on Jan. 1, 2019.
The policy formalized the guidelines that the department had already been following when it started using its own police officers to conduct details aimed at targeting human traffickers several years ago, Northern York County Regional Police Deputy Chief David Lash said.
These details “have the potential for a lot of liability on our part as well as the potential for uses of force and for improper actions by undercover police officers,” he said.
Normally, Lash said, police have enough evidence to make an arrest even prior to meeting with someone — through text messages, for instance. Law enforcement then does the exchange of money “and it’s over at that point.”
But in some instances, police might walk away.
“How important is a single prostitution arrest?” Lash said. “For us, it’s an easy answer. It’s not that important to where we’re going to put one of our officers in a situation that they don’t want to be in.”
After the York Daily Record started reporting on this story, West York Borough Police Chief Matt Millsaps typed up and distributed general guidance about prostitution investigations.
Millsaps said the document puts in writing what he’s always expressed to his police officers.
The general rule of the West York Borough Police Department, the document states, is to not go beyond the initial information and intelligence gathering phase — unless an obvious and articulable case can be established in clear and plain view of uniformed police officers.
Instead, the cases will be referred to outside, specialized units or agencies.
“Although we recognize prostitution to be criminal activity, it is beyond the ability of our resources, specialization, and scope of our stated mission to conduct in depth investigations into these very complex and often ethically challenging cases,” the document states.
In an interview, Millsaps emphasized that police would take immediate action if they received information that, for instance, someone was being held against his or her will and forced into prostitution.
Millsaps said he likes to believe that his approach for a small department makes sense for both the taxpayers and the police officers.
“We are not the vice cops. We are the community cops,” Millsaps said. “We’re the borough protectors — not the brothel inspectors.”
Police officers can compromise cases with their behavior in investigations.
In 2006, the Pennsylvania State Police allowed a man to become a confidential informant after he reported that a woman offered him “manual sexual stimulation” at a spa in Lehigh County.
Police gave the man money for sex — and for his “time” — on four separate occasions, according to court documents.
The lead investigator admitted in testimony that he and the others laughed after each rendezvous. Though his supervisors did not expressly approve the sex, they were aware and did not disapprove of it. And the trooper stated that he believed he had probable cause after the woman “offered a specific sexual act in exchange for the confidential informant’s offer of money.”
Lehigh County Common Pleas Judge Robert L. Steinberg granted a motion to throw out the case on the grounds of outrageous government conduct. Still, he noted at one point in the opinion, the judiciary is “extremely hesitant” to make that finding.
The Pennsylvania Superior Court later upheld the ruling.
The opinion does not set a “bright line” for what’s considered outrageous government conduct, said Chris Ferro, a defense attorney in York, who reviewed the case. That’s going to come down to a “very factually specific analysis.”
But “law enforcement would be smart to read that opinion,” he said.
“Clearly, there’s a line that, I think, quite frankly, hovers around common sense and having decent ethics, that can be crossed in the zest to make arrests in this field,” Ferro said.
Law enforcement can be reprimanded for conduct unbecoming of a police officer.
Courts have provided guidance about what rises to that level. That includes behavior that “adversely affects the morale and efficiency of the police force” or “tends to destroy public respect for, and confidence in, the police force.”
Generally speaking, police officers are held to higher ethical standards than normal employees, said Stanton Miller, an attorney in Media.
“In undercover operations there’s going to be a balance between the officers being able to retain the integrity of the office, while also blending into the environment,” Miller said.
“But if the police’s investigative techniques are harming the public trust, that could be extremely harmful in the long run.”
Conduct unbecoming of a police officer, he said, is sort of like a catchall. The term refers to “anything the employer deems or considers inappropriate or not in keeping in what they would expect both on duty and off duty.”
It’s up to a police department to determine that on its own, Miller said.
Even when police are found to have engaged in unprofessional behavior in a prostitution investigation, that might not rise to the level of a crime.
‘I don’t think this was a win in society’
Each time someone is prostituted, he or she experiences trauma, said Mary Anne Layden, a psychotherapist and director of education at the Center for Cognitive Therapy at the University of Pennsylvania.
Sex workers and those who are addicted to drugs or mentally ill are at an increased risk for sex-related police violence due to the stigmas surrounding them and their general vulnerability to abuse, she said.
Layden said she understands that some police officers make these arrests to help people get access to resources or find an exit strategy.
“To get them into diversion court, you have to arrest them — I get that,” Layden said. “But do you have to traumatize somebody to arrest them?”
Shea Rhodes, director and co-founder of the Institute to Address Commercial Sexual Exploitation at Villanova University, wants to shift the label of “criminal” in the sex work industry and prioritize resources to help these already-marginalized groups, instead of continuing the cycle of arresting or abusing them.
“The priority has got to be on violent offenders,” Rhodes said. “Prostituted persons are the victims here — anybody who is being purchased for sex is being exploited.”
Sexually exploited people often exist on the front lines of a community’s violent crime but are hesitant to report incidents to police. They do not think the police will take their complaints seriously, and they worry about the legal ramifications, she said.
The way the state’s system is set up, sex buyers are only targeted 25% of the time, Rhodes said. In 2017, Pennsylvania had 1,143 arrests for prostitution, but only 447 were for buying sex.
“Prostitution is gender-based violence, and we need to start shifting minds and hearts that way,” Rhodes said. “Prostitution would not even exist without the demand for commercial sex.”
Since Rhodes began handling these cases as a prosecutor in Philadelphia in 2003, she said she has been concerned with police tactics.
She’s in support of legislative efforts to include police officers and detectives in the statute for institutional sexual assault.
If someone is under investigation for prostitution, law enforcement should not be able to engage in any type of sexual conduct with that individual to make an arrest, Rhodes said.
And in her opinion, they don’t need to be arrested in the first place. Law enforcement should work with victim services and set the women up with resources and exit strategies.
For Strausbaugh, the woman who was found guilty of prostitution after the sting in West Manchester Township, the verdict amounted to more than probation and court costs.
“I couldn’t even get a job at a gas station or a fast food restaurant,” she said. “You don’t want me to go back to the way I was living before, but you’re making it so hard for me.”
She eventually found work. But now, Strausbaugh said she hates and distrusts the police.
“I don’t think this was a win in society,” Strausbaugh said. “I don’t think it was worth it to them.”
Information from: York Daily Record, http://www.ydr.com