An interesting aspect of the Rhode Island legislation [against indoor prostitution, previously blogged here] is the General Assembly bill’s definition of prostitution. 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.” Section 11-34.12. “Sexual conduct”means”sexual intercourse, cunnilingus, fellatio, anal intercourse, any digital intrusion or intrusion by any object into the genital opening or anal opening of another person’s body, or by the stimulation by hand of another’s genitals for the purposes of arousing or gratifying the sexual desire of either person.” Section 11-34-1.1 [sic]. The Senate bill does not define prostitution.
Legislative drafting is a difficult because language is an imperfect means of communication. But I doubt that sponsoring Representatives Joanne M. Giannini, Elaine A. Coderre, Helio Melo, Al Gemma and Deborah A. Fellela intended to draft legislation that is flawed on its face. Notice what is not defined as”sexual conduct”–genital stimulation with objects; fully-clothed, non-manual bodily stimulation (look, no hands!) … the list goes on. Furthermore, what constitutes a”fee”? Does”paying”someone with groceries, dental services, an apartment constitute payment of a fee under this statute?
If this legislation is to be successful, Rhode Island legislators must define prostitution more carefully.
-Bridget Crawford
(cross-post from publicsquare.net)
The language you quote from the proposed Rhode Island statute very closely tracks language used by states like Texas and New York. For a Texas case discussing and following New York law on what “fee” means in this context, see Tisdale v. State, 640 S.W.2d 409, 413 (Tex. App. — San Antonio 1982, pet’n ref’d) (quoting & adopting holding from People v. Block, 71 Misc.2d 714, 337 N.Y.S.2d 153, 157 (1972), emphasis omitted):
“The fair import of the word ‘fee’ then is payment in return for professional services rendered. It is not intended facetiously to point out here that prostitution has long been euphemistically known as ‘the oldest profession.’ ‘Fee’ in [New York] Penal Law § 230.00 can fairly be said to connote professionalism. It restricts the purview of the statute. For example, it would eliminate the situation (suggested by the defendants) of a wife who withholds the performance of her conjugal duties unless her husband gives her a mink coat. It further defines and limits the type of behavior the Legislature intended as criminal.”
Certainly there’s at least an argument to be made in favor of Rhode Island adopting statutory language that has already been used, and is well interpreted to good effect, from other states rather than trying to re-invent the wheel in ways that are likely to spawn lots of cases testing the interpretation of the legislators’ new handiwork.