This is a proceeding wherein the respondent, P, a 14 year old female was alleged, inter alia, to have offered to perform a deviate sexual act for U.S. currency, an act which, if committed by an adult, would constitute the crime of prostitution under Penal Law Section 230.00, a class B misdemeanor. P is before the court on the complaint of D.
The court notes that D was not charged with the violation of patronizing a prostitute, P.L. § 230.05 nor was he charged with any other crime applicable to these facts.
Paragraph Ten of the Bill of Particulars of the Corporation Counsel describes the incident as follows:
On 6 March 1977, at about 8:30 P.M., P accosted D on the street and offered to engage in sexual acts with him for a fee of $10. D agreed and P took him to the Evans Hotel, 273 West 38 Street, New York City. D paid $4 for the use of a room and went there with P.
Section 230.00 of the Penal Law states that a person is guilty of prostitution when such person engages or agrees or offers to engage in sexual conduct with another person in return for a fee.
A deviate sexual act is defined by Section 130.00(2) of the Penal Law as a sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and the penis, or the mouth and the vulva. Deviate sexual intercourse, also a Class B misdemeanor, is made a crime under Section 130.38 of the Penal Law. A person is guilty of consensual sodomy when he engages in deviate sexual intercourse with another person.
Under the Family Court Act, the court can find that a respondent is a juvenile delinquent only if (a) the court finds beyond a reasonable doubt under F.C.A. § 744(b), that the respondent did any act which, if done by an adult, would constitute a crime under F.C.A. §§ 731(1)(a); 752 and (b) the respondent requires supervision, treatment, or confinement under F.C.A. §§ 731(1)(c); 752. Both of these findings are jurisdictional and, therefore, a failure to find both elements requires dismissal of a juvenile delinquent petition under F.C.A. § 751.
The threshold question in all juvenile delinquency proceedings is, therefore, not whether a respondent committed a particular act but whether such an act would be a crime if committed by an adult. If not, then the court can go no further and must dismiss the petition.
Accordingly, if acts committed by an adult would not constitute a crime because the criminal statute or statutes making such alleged acts a crime were unconstitutional, such acts could not be the basis for a charge of juvenile delinquency. A youth under the age of 16 may be found to be a juvenile delinquent only if an adult who engaged in the same conduct as the youth could be found to have committed a crime. If a statute is unconstitutional as applied to adults, a statute is unconstitutional as applied to juveniles.
In the case at bar, the petition alleges that the respondent offered to perform an act of consensual sodomy for a fee. The charges brought against respondent necessarily invoke the prostitution statute under P.L. § 230.00 and the consensual sodomy law under P.L. §§ 130.38; 130.00(2). Respondent is specifically charged with offering to perform a “deviate” sexual act for a fee. Here, the respondent is charged with offering to perform an act which in and of itself is proscribed by a criminal statute, the consensual sodomy law under P.L. §§ 130.38; 130.00(2). It is necessary, therefore, for the court to examine those sections of the Penal Law and make a determination as to their constitutionality.
The court holds that sections 230.00, 130.38 and 130.00(2) of the Penal Law are unconstitutional under the New York State Constitution in that these statutes constitute a denial of equal protection and invade respondent’s constitutionally protected right of privacy.
The court holds that even were sex not a “suspect classification”, the prostitution statutes nonetheless violate the equal protection clause. There is no reasonable justification for penalizing the conduct of female prostitutes more severely than the conduct of their male patrons. The prostitution laws have undeniably been selectively enforced against females because of their sex. Discrimination by the state between different classes of citizens, must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relationship to the objective of the legislation, so that all persons similarly circumstanced shall be treated alike as ruled in In re Patricia A.
This court can find no real difference between the conduct of the prostitute and the patron. The patron pays and the prostitute receives compensation for her services. The patron may be the solicitor.
The respondent is charged with offering to perform a “deviate” sexual act for a fee. As indicated above, it is necessary, therefore, for the court to examine sections 130.38 and 130.00(2) of the Penal Law and make a determination as to their constitutionality.
The Penal Law only makes unlawful acts of “deviate” sexual intercourse performed by unmarried persons, whether of the opposite or same sex crimes. Thus, the consensual sodomy statute creates a distinction between the private consensual sexual conduct of married and unmarried persons.
The private consensual sexual relations of married and unmarried persons involve a fundamental right of privacy protected by the New York State Constitution. Since a fundamental interest involving life or liberty is involved in this challenge to the constitutionality of the consensual sodomy statute, this court considers the state interests claimed to be protected by the criminal of consensual sodomy between unmarried adults. However, the court will not accept mere claims that “deviate” sexual intercourse is harmful and, therefore, is properly proscribed by a state statute. On the contrary, it must be demonstrated that consensual sodomy in fact harms the public health, safety or welfare under See P.L. § 1.05. It cannot be said that acts of deviate sexual intercourse are, in and of themselves, intrinsically harmful or unnatural, causing in the participants any deviation from fundamental human nature.
This court knows of no study that has substantiated the allegation that sex for money in fact causes ancillary crime. Due process requires that a law be reasonably related and applied to some actual or manifest evil. It must have, as its objective, the eradication of harm in fact caused by the proscribed conduct. The constitution limits the extent to which the state can proscribe prostitution with the purpose of eradicating an entirely distinct, severable kind of conduct. The state must proceed against ancillary crimes directly by enforcing the specific sanctions against such conduct and may not rely on the blunderbuss approach of incarcerating all prostitutes.
There is no factual basis that prostitution encourages the spread of organized crime. Prostitution plays a small and declining role in organized crime’s operation”. There is no proof that prostitution is the cause in fact of organized crime. Therefore, it is improper and unreasonable for the state to proscribe prostitution as a method of curbing organized crime.
Another type of harm attributed to prostitution is that it injures the community. Underlying this claim are the allegations that commercial sex undermines the stability of the family and is simply immoral. As Held in People v Costello, the law may seek to legislate morality, but it must do so without offending the constitutional protections of the due process clause and the right of privacy.
The Penal Law should act to deprive an individual of liberty only when a real and demonstrable harm to the public can result from the proscribed conduct. The state cannot rely upon the bare assertion of immorality to justify a criminal prohibition. Conduct that does not interfere with the rights and interests of others may not be regulated by the state.
Preventing harm to what is believed by many to be the central institution for social cooperation, the family, may well be a legitimate objective of the state. Most male patrons of prostitutes are married and it is the patron who creates the demand for the services of prostitutes. If the marital contract is breached by promiscuity or the family undermined by extra-marital sexual relations, the burden of responsibility lies with the patron, not the prostitute.
Yet, the penal law punishes the prostitute most severely. If the state’s objective is to promote the stability of the family and commercial sex has a direct impact upon the family, then the law should focus on the conduct of the patron. However, it has never been demonstrated that commercial sex crimes has had any effect on the stability of marriage or the family. The court notes that although prostitution has been practiced for centuries, disruption of the family has never been causally related to prostitution.
Several states and numerous foreign nations have decriminalized prostitution without any indication of a concomitant decline in the vitality of the marital or family institution. The decriminalization of fornication in this state has not led to any reported damage to the family. The court can find no reason why commercial fornication should have a less innocuous effect on these social institutions. Thus, there is no empirical connection between prostitution, whether involving ordinary or deviate sexual intercourse, and the stability of the family. Therefore, the state cannot reasonably assert protection of marriage and the family as legitimate objectives for its regulation of prostitution. Society may find something offensive about having women perform sex for money. However offensive it may be, recreational commercial sex threatens no harm to the public health, safety or welfare and, therefore, may not be proscribed.
Finally, the criminal court observes that prostitution offends public sensibilities. Individual members of the public may indeed be offended by the public conduct associated with prostitution. They may be solicited on the street by prostitutes, embarrassed by the advances of streetwalkers, or find their path on the sidewalks or thoroughfares blocked. Indeed, such conduct may be a harm legitimately of interest to the state should it constitute public disorder. The court will not decide the question of who has a right to be on the public streets. The court, however, will point out that this public conduct is not caused in fact by the act of engaging in sexual relations for a fee. This harm, if any, is caused by the solicitation aspect of prostitution.
The public aspect of prostitution, solicitation, must be distinguished from its private aspect, the performance of consensual sexual relations for a fee in private. Street solicitation is a method of advertising the business of commercial sex. It is separable from the underlying activity. The prohibition of the offensive public conduct associated with the solicitation of prostitution may be a legitimate state objective. Since it has been demonstrated that only this public element of prostitution may make that conduct harmful, and that public conduct may be dealt with separately from the sexual conduct itself, it would be unreasonable for the state to completely proscribe private, sexual conduct in order to reach distinct public solicitation.
These public interests can be protected. Private, consensual sexual conduct between adults, whether or not performed for a fee, is protected by the right of privacy. If the state has a legitimate interest in curbing public disorder, it can and must accomplish this objective without depriving the individual of his or her right to engage in private, consensual, sexual relations. The constitutionally protected right of privacy makes it incumbent upon the state to implement its policy by more reasonable, less intrusive means.
For the reasons stated, the sexual conduct charge against criminal respondent is dismissed.
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