Published on:

Defendant Contends Penal Law Unconstitutional


The complainants, a prostitute and a patron seek a judgment declaring sections of the Penal Law unconstitutional. The laws prohibit prostitution and patronizing a prostitute.

A New York Criminal Lawyer said the action was commenced and the opponents, the City Mayor and the City Police Commissioner moved to dismiss on the ground that the prostitute and the patron lacked standing. Another opponent, the County District Attorney moved to dismiss on the same ground and also that the complaint failed to state a cause of action. The complaint was dismissed for failure to state a cause of action with leave to re-plead. The complainants filed an amended complaint and all the opponents moved to dismiss on the same grounds alleged by the District Attorney after the first complaint was filed. The complainants filed a cross motion for summary judgment. Before deciding the motions, the Court determined whether any of the prior rulings are LAW OF THE CASE.

The Law of the Case doctrine is a kind of intro-action res judicata or matter that was already settled and cannot be raised again. Within the framework of a single action, it prevents re-litigation of a point already adjudicated in it.

The doctrine is limited to questions of law and is frequently applied as a matter of judicial discretion. A New York Criminal Lawyer said the purposes behind the rule are varied but include judicial economy, comity and avoidance of judge shopping. The interests must be balanced against other policies and the interest in equal justice. Thus, while it is often stated that if a judge’s decision on a point of law is clear, such decision is binding on another judge of co-ordinate jurisdiction, the rule is not absolute and has limits.

After careful analysis of the prior decision and application of the above criteria, the Court finds the prior ruling that the complainants possess standing and present a justiciable controversy to be Law of the Case. Although remedy was discussed in the prior ruling (within the context of standing and whether a justiciable controversy was presented), the propriety of a declaratory judgment was never decided. In fact, leave to re-plead was specifically granted so that the complainants could amplify the factual basis for declaratory relief. The Court determined whether the complainants have presented the necessary requirements for a declaratory judgment.

The complainants have not presented the Court with either a sole question of law or undisputed set of facts. A New York Sex Crimes Lawyer said there is no proof that they will continue to act within the same factual parameter. There is a present claim and it may differ from their future activities. A declaratory judgment will not be granted when each or any of the gradation of fact or charge would make a difference as to the criminal liability of the complainant.

Moreover, the complainants have not been threatened with prosecution. They have never been arrested nor are they in imminent danger of being arrested. The fact that they wish to engage in proscribed criminal activity does not present the threatened prosecution necessary for a declaratory judgment.

The complainants also do not allege any irreparable injury, past or future. Although they may be subject to some economic loss or an eventual arrest, these are not the ills a declaratory judgment is intended to prevent. A New York Drug Possession Lawyer said no doubt criminal prosecutions are always annoying and may disarrange the opponents’ income or finances, but never yet has this been sufficient to change the usual and customary course of prosecution of a crime.

The complainants have not presented the necessary requirements for a declaratory judgment action. However, since the matter presents a question of importance to the workings of the criminal justice system, and it is a recurring problem, the Court feels obligated to express its view on the merits.

The complainants contend that the Penal Law violates their rights to due process and equal protection under the United States and New York Constitutions. They also contend that Penal Law deprives them of equal protection of the law because they are unconstitutionally under-inclusive in that they burden them and not others similarly situated.

The Fourteenth Amendment of the United States Constitution and the New York State Constitution forbid the state to deny to any person within its jurisdiction the equal protection of the laws. Equal protection is not, however violated by every state discrimination. When dealing with neither a fundamental right nor a suspect class, equal protection is not offended so long as the state’s action is rationally based. If any conceivable state of facts will support a classification, the said provision will not be held in violation of the equal protection clause. A Court may even hypothesize the motivations of the State Legislature to discern any conceivable legitimate objective promoted by the provision under attack.

The complainants further contend that if a husband who pays his wife a fee for sex is not guilty of violating the prostitution statutes, then equal protection is offended if unmarried persons who engage in sexual activity in exchange for a fee are guilty. Undoubtedly, a marital exemption exists for the crime of prostitution. The exemption violates equal protection unless some ground of difference exists to rationally explain the different treatment.

Marriage is a fundamental right where freedom of personal choice is protected to a heightened degree. As such, an expanded zone of privacy attaches to the marital relationship. Thus, absent compelling state interests, interference by the state with the intimacies of the marriage relationship, including sex, would violate the right to privacy. It is this special status that provides a rational basis to discriminate between married and unmarried persons under the prostitution statutes.

A review of the legislative objective surrounding the prostitution status discussed indicate several other reasons for distinguishing sexual conduct between prostitutes and patrons from that of married couples. All of the attendants associated with commercial sex are simply not present when sexual conduct occurs between married couples. Private sexual intimacy between married couples poses no threat to the public order. Accordingly, equal protection is not violated by the existence of the marital exemption.

The patron complainant also contends that the Penal Law sections deprive him of the right to engage in sexual conduct while granting the right to non-handicapped people. In support of such proposition, he offers no evidence or proof that any discrimination of this nature exists. Nowhere in the face of the statutes does such discrimination appear.

Finally, the patron complainant contends that Penal Law discriminates between those who keep mistresses and those who patronize and solicit prostitutes. His first shortcoming in his contention is that he offers no evidence or proof that the activity between mistresses and those who keep them is not criminal. Even if discrimination exists between these classes, equal protection is not violated so long as some ground of difference exists to rationally explain the different treatment. Although the relationship between a mistress and lover does not rise to the lofty status given the marriage relationship, it lacks most of the evils perceived by the legislature as attendant to prostitution. It is certainly not connected with organized crime or a source of profit for use in combine with other illegal activities. It is, for the most part, neither indiscriminate nor commercial. It is usually conducted between singular, not multiple participants. Because of such singular participation, there exists no greatly increased risk that venereal disease will be propagated. Further, it is difficult to conceive of how a mistress relationship could constitute a threat to the public order. Given these distinctions, enforcement against mistress-type relationships of the challenged penal laws would not foster the legislative objectives of the prostitution statutes.

In conclusion, the amended complaint is dismissed for failure to state a cause of action. Accordingly, Penal Law Sections are declared constitutional. The complainants’ cross motion for summary judgment is denied.

Laws are meant to protect the interest of everyone. Individual rights, marriages, families and properties are just some of the many things that the law looks after. Even those who engage in prostitution have the right to be protected by the law. If you need a Kings Sex Crime Lawyer or a Kings Criminal Attorney, call the office of Stephen Bilkis and Associates from all over the NY Metropolitan Area.

Contact Information