Can an undercover cop touch you

Published Apr. 26, 2013

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A Disproportionate Effect on Women?
"Limited Contact" Allowed

LARGO — Prostitutes have started asking Largo's police officers to do naughty things.

It could be an otherwise routine sting, an undercover cop picking up one of the women, or sometimes men, who sell their bodies along Clearwater-Largo Road. But when the time comes to strike a deal, agreeing to exchange money for a sex act, would-be suspects have begun asking for demonstrations that their customers are not police.

An undercover officer might be asked to expose his or her genitalia, or fondle a suspected prostitute's breast. The police call it "screening," and say it has made it extremely difficult to enforce prostitution laws. Were a police officer to expose himself or fondle someone to secure an arrest, "I wouldn't want to explain that in court," said Largo police Sgt. Mike Bruno.

To address this problem, the City Commission recently passed an ordinance that will enable police officers to arrest prostitution suspects even for the mere act of "screening," and for engaging in other behaviors that fall short of actually agreeing to have sex for cash.

The ordinance makes it illegal to ask an undercover police officer to expose his or her sexual organs, or ask the officer to fondle or touch someone else's sexual organs, during encounters that begin on public property (such as roads).

For those with a history of prostitution offenses, a number of acts that could arouse suspicion are also banned, such as repeatedly hailing motorists from the road, making lewd gestures to passers-by, or hiding when police officers appear. To be arrested under that provision, at least three suspicious behaviors must be exhibited.

The law is similar to others that have been passed in St. Petersburg and Clearwater. Bruno said it was necessary to beef up prostitution enforcement in Largo, which had ground to a halt because of the prostitutes' sophisticated screening techniques.

"We were really running into a dead end with them," he said.

The St. Petersburg Police Department has had success with its own prostitution ordinance, said spokesman Mike Puetz. Officers have made 76 such arrests since the beginning of 2011 under provisions like those enacted in Largo, he said.

Civil libertarians might be expected to see the lowered bar for arrest as problematic. But Largo Mayor Patricia Gerard said the ordinance had not met any serious opposition when it was before the commission, and that she was comfortable that the language of the law was strict enough to avoid ensnaring innocents.

"The bar is pretty high," she said. "It's not like you're going to accidentally get arrested for prostitution." She said the commission would also be following up with police on how enforcement of the ordinance plays out.

Bruno, who said he first began pushing for the legislation more than a year ago, likewise said he doesn't think the ordinance supplies police with overly broad powers.

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"It's restrictive to the point of being overly safe," he said.

Peter Jamison can be reached at or (727) 445-4157.

Law enforcement agencies often use -- and courts usually allow -- "sting" operations, where officers go undercover to catch people involved in the sex trade.

Sting operations are a practical response to the way prostitution is carried out. Most other crimes come to the attention of law enforcement through victim or witness reports. Prostitution, however, presents unique enforcement challenges. Most prostitution is consensual, in that the parties to the encounter agree to an exchange of sex for money. It's in neither party's interest to report the other. And because these sex acts usually occur in private, the chances of innocent third parties observing and reporting them are slim. As a result, police agencies mainly enforce prostitution laws through sting operations.

A Disproportionate Effect on Women?

Studies have found that women account for the vast majority of prostitution arrests. This finding is due partially to the prevalence of women as sex workers, but some suggest that police practices contribute to the disproportionate arrest rate. For example, police agencies historically used male decoys posing as potential patrons much more often than female decoys posing as prostitutes.

Critics of sting operations allege that law enforcement agencies employ them disproportionately against women, especially "streetwalkers," who are often poor minorities and immigrants. These critics also argue that the police do not target prostitution customers, colloquially known as "johns," nearly as much as they do sex workers. Regardless, courts throughout the country have routinely rejected challenges to prostitution stings, including when the challengers have argued that these practices discriminate against women. In fact, police officers are not only allowed to conduct sting operations—they are afforded considerable discretion in executing them.

"Limited Contact" Allowed

Knowing that police officers go undercover to catch them, sex workers often ask potential "clients" to engage in some degree of sexual contact, which the workers think will prove that they are not undercover officers (workers are counting on an officer's refusal). Accordingly, officers argue that effective policing sometimes requires that they participate in limited sexual contact to convince sex workers that they are not police. Although courts have consistently allowed sexual contact in this context, there are limits to what they will accept.

In a 2009 Minnesota case, the appellate court reversed a sex worker's prostitution conviction on the grounds that the investigating officer's behavior was so outrageous that it violated her due process rights. (State v. Burkland, 775 N.W.2d 372 (Minn. App. 2009).) While discussing the possibility of purchasing sexual services from the defendant, the officer initiated and escalated sexual contact by fondling the defendant's breasts. The court distinguished this conduct from acceptable undercover behavior because it did not occur in response to a demand by the defendant and was unnecessary to the investigation.

In another 2009 case, this one in Pennsylvania, the police employed—quite literally—a citizen to accumulate evidence of sexual impropriety at a health spa. (Commonwealth v. Sun Cha Chon 983 A.2d 784 (Pa. Super. Ct. 2009).) State police paid him to purchase sex acts from female spa workers. The court dismissed the criminal charges, again on a finding of outrageous government conduct. The court found law enforcement's conduct "shocking" and "outrageous." However, it did not rest its decision exclusively on the fact that the police paid an informant to have sex with prostitutes; it also cited the informant's questionable motives and the officers' unprofessional conduct, which included joking about the sexual encounters.

These cases help define the limits of what courts consider acceptable enforcement methods. But, police agencies still have considerable leeway when investigating prostitution rings.

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