Wilson Law Group has posted about solicitation of prostitution issues in the past, but we are still seeing new clients come in whom the police have caught in backpage.com stings. Law enforcement uses that controversial website to lure unsuspecting “johns” to hotels in the metro area and records the entire interaction to ensure criminal prosecution. If you are caught soliciting prostitution at a hotel, which qualifies as a “public place” under Minnesota law, the State will charge you with a gross misdemeanor. The maximum sentence for a gross misdemeanor is one year in jail and/or a $3000 fine. It is a common misconception that any police undercover operation, like this one, qualifies as “entrapment.”
The backpage.com sting is very formulaic and usually plays out in the same way each time. This is what we have seen in a typical case: Law enforcement puts an ad on backpage.com showing a scantily clad woman’s body that does not show her face. The ad will say to call a number to arrange to meet. When the potential customer calls the number listed, a female undercover police officer answers. The police record the phone calls so they can use them in criminal prosecution. The undercover officer directs the “john” to call her back several times, each time giving further instructions or directions. She will direct him to drive to a certain intersection and to call her from there; then to a hotel parking lot and to call her; and, finally to a specific room.
When the undercover officer opens the door to the hotel room she is usually dressed very modestly and offers the customer a hug. Once the customer is inside the hotel room, the undercover officer quickly gets him to agree to a service and they discuss cost. The undercover officer almost invariably asks whether the customer will agree to wear a condom during the discussion, presumably to ensure they are both talking about sexual intercourse and not just a massage or other legal service. Once the parties make an agreement, the officer asks the customer to put the money on the nightstand or TV. As soon as the money is out, the officer excuses herself to “change into something more comfortable” which is the signal to the officers listening in the next room that they should come in and arrest the customer. The police usually set up audio recording devices and often cameras in the room. Everything that the parties say and do in the hotel room can likely be used as evidence in court.
Many of you may now be thinking, “Isn’t that entrapment?!” The police are luring a normal law-abiding citizen into a hotel and recording a woman asking him to pay her for sexual services. That’s not fair, right? Wrong. Under Minnesota law, and the law of many states, it is not entrapment unless the government actor actually implants the criminal idea in the mind of the defendant. If the defendant, or the customer in this scenario, had the proclivity or intent to commit the crime with nothing more than the solicitation by the government, entrapment is not a sustainable defense. However, if the government actor used improper pressure or persuasion, then the defendant may have an entrapment defense.
Next time you consider looking for some entertainment online, think about what it would be like sitting next to your lawyer watching yourself talk to an undercover police officer while you undress and are subsequently arrested.