Escort Services
Legal Issues

by Marc Perkel

Legal Issues for Escort Services

What is prostitution? Is an escort service a prostitution business? Are all instances of sex for money prostitution? Are all exchanges of sex for money illegal? If not, what differentiates legal sex for money and illegal sex for money? What are the moral and ethical issues involving prostitution, sex, and money and where does the law fit in? What are the rights of the individual to have sexual intercourse and what rights does society have to control the sexual behavior of consenting adults? These are the questions I am going to attempt to answer here in an attempt to create legal arguments that I hope will be instructive to courts, judges, prosecutors, and defense lawyers in the battle over the role the government has in regulating the exchange of money for sexual contact.

It is my hope that this will be an evolving document and that others who read this will send me more information to add to these arguments. I am writing this because I think that it's time that we as a society face certain realities about sexual behavior and the exchange of things of value for sexual contact. I believe that sex workers are being persecuted for providing legitimate and necessary services to society and that much of this persecution is from lack of understanding of the moral, scientific, and legal issues involved in making a living as a sex worker.

 

Legal definitions of prostitution

The laws defining and controlling prostitution vary from state to state. I live in Missouri and prostitution and other important legal concepts are defined by Missouri Statute 567-010 as follows:

"Prostitution", a person commits prostitution if he engages or offers or agrees to engage in sexual conduct with another person in return for something of value to be received by the person or by a third person;

"Sexual conduct" occurs when there is

(a) "Sexual intercourse" which means any penetration, however slight, of the female sex organ by the male sex organ, whether or not an emission results; or

(b) "Deviate sexual intercourse" which means any sexual act involving the genitals of one person and the mouth, hand, tongue or anus of another person; or

(c) "Sexual contact" which means any touching, manual or otherwise, of the anus or genitals of one person by another, done for the purpose of arousing or gratifying sexual desire of either party;

"Patronizing prostitution", a person patronizes prostitution if

(a) Pursuant to a prior understanding, he gives something of value to another person as compensation for that person or a third person having engaged in sexual conduct with him or with another; or

(b) He gives or agrees to give something of value to another person on an understanding that in return therefor that person or a third person will engage in sexual conduct with him or with another; or

(c) He solicits or requests another person to engage in sexual conduct with him or with another, or to secure a third person to engage in sexual conduct with him or with another, in return for something of value;

"Something of value" means any money or property, or any token, object or article exchangeable for money or property.

Case law is used to refine these definitions because the rules and statutes are never perfect. Case law varies from state to state. Thus a specific act may be an immoral crime against society or may be perfectly legal depending on if the act is done on a specific side of a line on a map. Case law also varies based on the religious beliefs of the judges involved in making decisions and interpreting case law. And in many cases it depends on the ability and diligence of the lawyers involved in defending and prosecuting these cases. Thus there is an element of randomness involved in whether or not your sexual conduct will land you in jail. I hope this document will help eliminate much of this randomness.

 

What is Sex?

From a purely biological point of view, sex is the exchanging of DNA information between members of the same species of opposite sex in order to reproduce. Sexual intercourse is the act of delivering the male genetic material into the female in order to cause offspring to be created. It is essential for members of a species to have sexual intercourse in order for the species to continue to exist. Sex is essential to life. Without sex, life ceases to exist.

All advanced life on this planet requires sex to reproduce. Sexual behavior is a necessary instinct in the survival of any species. It is as necessary as the ability to hunt food, to defend against predators, to seek shelter from the weather, to breathe air, to drink, and to function as a member of a herd. We are the descendants of billions of years of sexually active individuals. Had any of our ancestors, all the way back to the primordial soup failed to engage in sexual activity, we wouldn't be here to argue the point. Where there is no sex, there is no life. If the government were to stop all sexual activity between humans, we would become as extinct as we would if food were prohibited. It would just take longer to die out.

Like the animals, we humans are born with the sexual instincts programmed from birth into our brains. Because we are somewhat intelligent and self aware, we have developed a limited ability to control our sexual behavior. And I say a limited ability because very few humans can totally control it and those who do tend to reproduce less that those who don't. We are the descendants of those who did not have self control. And those of us who achieve self control will not pass as much genetic information into the next generation as those who fail to achieve self control.

Sexual activity has some other secondary functions in society. Besides the exchange of genetic material, it is an activity that creates relationships between individuals and bonds them together. Thus the female not only uses the male as a semen donor to create the child, but to keep him around and involved in the rearing, feeding, and protection of the children so that they can survive to reproduce themselves. Thus sexual activity is used as entertainment in order to bond humans emotionally so they stay together to raise and protect children. This function applies to both homosexual and heterosexual couples and it applies to sexual acts that don't lead to directly to reproduction such as oral and anal sex, and vaginal sex between married couples whom are no longer capable of reproducing.

As an instinct, sexual activity and sexual contact is necessary to an individuals psychological well being. The urges to reproduce are etched into the brain from birth and it is necessary for people to engage in sexual contact in order to create a sense of personal well being. It is well known and established that humans who engage in sexual activity with others are generally happier and more productive than those who don't are. So even if the sexual activity of the person doesn't lead to reproduction, it is still necessary to satisfy the human instinct to at least go through the motions to attempt to reproduce.

Much of the human body is dedicated to reproduction and sexual activity. The more sexual a person is, the more likely they are to reproduce. Even acts of masturbation are necessary to reproduction. In women it stimulated the lining of the uterus to renew its lining in preparation for pregnancy. In men masturbation is necessary to rid the body of aging sperm to be replaced by fresh young sperm that are more likely to lead to reproduction. Even in people who are incapable of reproduction, these instincts are still present and part of human nature and necessary functions for the well being of the individual.

 

Fundamental Rights

In ancient times people had no fundamental rights. A person's rights were defined by their personal ability to survive. Kings would slaughter whomever they wished and justice was not a factor. 200 years ago America formed a new form of government that was a government of the people for the purpose of serving rather than ruling the citizens. We created a constitution that outlined a concept referred to as the fundamental rights of the individual to pursue life liberty and happiness. We aspire to be a free society that allows a person to choose his own destiny and make his own choices free of government intrusion. Government was to stay out of a person's private life unless the rights of one person intruded on the rights of others or the common good of the public. What this means is that the State was to mind its own business unless there was a damn good reason to interfere.

Some examples of fundamental rights include the freedom to speak your mind without the State interfering with the free flow of ideas. We have the right to freedom of religion so that everyone can worship God, or not worship God, as he sees fit. Freedom of religion is the freedom to believe what you want and to not have the State impose religious beliefs on its citizens. Even if a majority of the citizens have a particular religious commonality, such as believing in Christ, they don't have the right to make a Buddhist share that belief and more that a Buddhist has the right to force Christians to believe in reincarnation.

We also have the right to be secure in our persons. We have the right to defend ourselves against attack. We have the right to own property and to keep the state from taking our property without due process of law. We have the right to liberty and to privacy and to be human beings and to express our human nature. We have the right to get married, have sex, and to reproduce. Generally, any human activity that is our human nature is, or at least should be recognized by the State as a fundamental human right.

Sexual behavior is in our nature and is an integral part of being human beings. Thus any laws that restrict sexual behavior must be construed narrowly so as not to violate our fundamental rights to be human beings. There are legitimate reasons, for example, for the State to prohibit sexual activity with children. This is because the sexual activity of one person acts to the detriment of another person, a child, who is not capable of understanding for the purpose of consenting to sexual activity. The minor child is also not capable in many cases of refusing the sexual advances of the adult and it is necessary for the State to step in and say No in behalf of the child. But beyond protecting children from sexual activity and protecting people against non-consensual sex, and public health issues, the State is required by the Constitution to not interfere with the individuals personal sexual behavior.

 

Sex and Money

Other that breathing and eating, people spend much of their time involved in reproductive activities or making and spending money. Sex is everywhere. If we aren't having intercourse, we're thinking about having intercourse. Much time and effort is spent trying to or preparing for intercourse. Men and women both spend a lot of time and money to have sex. We buy clothes to look good to the opposite sex and to send messages to keep sexual competitors at bay. We put on chemicals that smell good and stimulate a sexual response in the person we are trying to attract. Men work to make money to buy a house and to accumulate money and security to attract women so that there is a stable enough environment for a woman to feel comfortable to have children.

Women know instinctively to be attracted to men who are capable of not only producing quality genetic material, but to show that he can be a source of food, clothing, and shelter so as to raise children to reproductive age. It is human nature for a male to demonstrate his ability to be a resource to the female so as to get her to consider him as a possibility to father her children. Thus sex and money are closely related.

In the animal kingdom the strongest males drive off other males and defend the females and offspring from predators. Human females are similar in that females who carefully select their males on the basis of being able to sustain a family have reproduced more successfully than females who were less discriminating. Thus women have evolved to want men with money. And men have evolved to make money as a means of attracting women. Sex and money have a biological connection.

Men and women both spend huge amounts of money to make themselves more attractive. Why do men and women wear false hair pieces? Because it visually stimulates potential sex partners. Why do women get breast implants? The reason is not to enhance the feeding of babies. These implants are to make themselves more sexually desirable to men. One only has to look at the amount of money spent on clothing, perfumes, makeup, and Viagra to see that people are willing to spend a great deal of money in order to get sexual contact. So if it is moral to spend huge amounts to get the chance to have sex, then it seems to follow that some people are likely to spend money directly to have sex.

Having sex, thinking about having sex, and preparing to have sex involves a lot of the average person's time in the average day. People also spend a lot of time earning a living, making money, spending money, or saving money. There is also a lot of time and money spent in relation to having sex. Families are very expensive. Raising kids and educating them is all part of sexual reproduction. With so mush of humanity involved in money and sex, there are going to be a huge number of transactions that involve both money and sex at the same time. In fact, there are probably very few sexual encounters where money isn't somehow involved. Even marriage, the most widely accepted form of sexual union, is in legal terms a contract in which the two parties merge their property. In a relationship without children, a marriage contract is really a property contract in the eyes of the courts.

 

Sex, Money, and Prostitution

If prostitution is sex for money and money plays a part in most sex acts, then is most sex really prostitution? If prostitution were defined that simply, the answer would be Yes. But we all know that's not the case. Prostitution isn't just the union of sex and money, which occurs all the time, it's specifically sex for money. For an act to be prostitution there has to be an understanding that the person is paying money to have sex. That narrows it down a lot.

Thus if a man buys a woman flowers and chocolates in hopes that she will have intercourse, or a woman cooks dinner for a man hoping for sexual contact, that's not prostitution. Even if a man gives a woman money as a gift because he is expecting or hoping for sexual contact in exchange for the gift, that's not prostitution. So there is a lot of cases where people spend money to get sex that is not prostitution because is lacks a specific agreement to have sex in exchange for "something of value".

Under Missouri law the definition of "something of value" is interesting in that it is defined as something exchangeable for money or property. It doesn't define services as something of value, especially services that don't produce a product that can be exchanged for money or property. Thus, the way I read Missouri law, a woman can have sex with her lawyer in exchange for legal services because legal services don't fit the definition of "something of value" as defined by statute. If a woman offered sex to a man for fixing her car, that might go either way based on the idea that maintenance could be construed as increasing the resale value of the car. If a woman traded sex for a man managing a stock portfolio, it would only be prostitution if he made money in the market.

 

Is Sex for Money always Prostitution?

Although the law defines prostitution as basically sex for money, this rule doesn't always apply. There are many cases where people are paid money or "something of value" in exchange for sexual contact and it is not prostitution. It seems logical at this point to list examples of sex for money that is not prostitution in order to more accurately develop a set of rules to determine what prostitution is by examining what it is not.

For example, the making of a porn movie is not prostitution. But in a porn movie you have sexual contact and the actors are paid to have sex in front of a camera. This is clearly sex for money, but it's not prostitution.

We have all seen movies involving love making on the screen. Many sex scenes have even made it to prime time television. They involve simulated sex. Simulated sex is where the actors don't have genital penetration. The visuals are often faked, although in many cases, real sexual stimulation occurs. Although much of the sex is simulated sex, often the scene involves the licking of nipples, grinding of groins, kissing of the thighs and navels, penises get hard, faces get red, nipples become erect. These acts are real and these people are doing it for money. Is this prostitution? No! Is this sex for money? Yes it is. But, they're making a movie. Thus it is legal to have sex for money in the context of making a movie.

A man goes into a topless bar and sits down next to the stage. He pulls out a dollar bill, folds it lengthwise and lays it on the stage. The female dancer sees the money and moves right in front of him. She shakes her breasts in his face, spreads her legs, shows him her ass and moves her hips in a humping motion. She then turns and hisses him on the forehead and pulls her garter indicating for him to put the money there. He does, and she repeats the performance for the next man with a dollar. Is this prostitution? No. Is it sex for money? Yes it is. But it's dancing.

A woman is working for a large company. Her supervisor is a handsome single man. An opportunity for a promotion opens up. She indicates to her supervisor that she's willing to have sex with him if she gets the job. The new job pays more than her present job. They have known each other for years and have dated in the past but never had sex. She has sex with him and she gets the job. Is it unethical? Yes it is. Is it sex for money? Yes it is. Is it prostitution? No.

A man and a woman are dating. They are out shopping and she sees something she wants. He asks if he buys the item for her if she'll have sex with him. She agrees. Is that prostitution? No. Is it sex for money? Yes it is. But it's in the context of a relationship. It may be a screwed up relationship, but it's not a crime. We are Americans and we have the right to have a screwed up relationship.

A couple is having sexual problems. Their marriage is in a rut and they are talking about divorce. The problem is that the "spark" is gone. Sex just isn't good any more. That may be a bad reason to divorce, but it happens. In an attempt to save the relationship, the go to a sexual counselor. The counselor examines the couple and determines that they need training in sexual technique. This training is to be accomplished by sexual surrogates. The couple is taken to a room where a staff male and a staff female engage in sexual intercourse with the couple and train them in sexual techniques. The staff members are total strangers and are having sex with the couple for money. Is this prostitution? No! Is it sex for money? Yes it is. But it is in the context of therapy. Even if the sexual surrogates are not licensed or trained it's not prostitution. It is at best a license violation.

A smart young man has an affair with a rich old woman. She is lonely and she desperately wants sexual contact. He lives with her and takes care of her needs. She takes care of his expenses. Both know what's going on. He knows if he doesn't give her sex that he's gone. She knows that if she doesn't give him money he's gone. However, they have lived together for a long time and are both getting what they want. Is this prostitution? No. Is it sex for money? Yes it is. A prosecutor might in theory be able to press criminal charges, but what jury would actually convict either party of prostitution, especially if there were other things that they did together besides sex and money.

A man pulls his truck into a truck stop to spend the night. Just as he parks a woman knocks on his door and asks him if he wants a date. He says, "how much for a blow job?" She responds, I'll suck you for $40. He gives her a pair of twenties and she goes for it. Is this prostitution? Yes it is.

 

What makes Sex for Money not Prostitution?

We have now listed several examples of sex for money that is not prostitution. What is the common element that makes sex for money not prostitution? If you are making a movie then sex for money isn't prostitution. If it is part of dancing on stage then sex for money isn't prostitution. If it's in the context of a relationship then sex for money isn't prostitution. If it's in the context of therapy then sex for money isn't prostitution. If it's in the context of getting a job then sex for money isn't prostitution. If it's in the context of friendship then sex for money isn't prostitution. If they are living together then sex for money isn't prostitution.

It seems that the common element that makes sex for money not prostitution is that if it's not only sex for money. In all these cases there is a third element involved. It's always sex for money and something else. The one example of prostitution was when there was only sex for money and nothing else. Thus, although the statute defines prostitution as sexual contact in exchange for something of value, it seems like in practice that the real rule is an exchange of something of value for only sex and nothing else. Because if you are buying sex and friendship or sex in the context of a relationship or therapy, or making a movie, then the third element makes the event not an act of prostitution, even with the element of sex for money.

Thus the language of the statute is incomplete because it doesn't say what it really means. Prostitution is more accurately defined as:

"Prostitution", a person commits prostitution if he, in return for something of value to be received by the person or by a third person, engages or offers or agrees to engage in only sexual conduct with another person.

 

Sex for Money vs. Sex for Free

The State has outlawed sex for money, or rather paying money for only sexual contact. But the sex itself is legal for free. There is no sex act that can be done by a sex worker that canít be done for free legally by a friend who doesnít charge any money, or for that matter, a total stranger that doesnít charge any money. So what is the difference between free sex and paid for sex? This is the all-important question to answer so that we can determine the will of the legislature and what they were trying to prevent when they made prostitution illegal.

Making money isnít a crime. Sex isnít a crime either. Itís the combination of money and sex that is criminal; especially when there are no other redeeming elements involved. One must therefore assume that the legislature believes that act of paying money for sex alters the sex into some form of immoral sex which members of society should not do.

Presumably, the intent of the legislature is to discourage sex that is totally impersonal. A situation where a woman is reduced to a warm wet hole for a penis to ejaculate into. My example of the woman and the trucker is an example of this. The proposition is that for $40 the woman will provide a female hole for the man to use. The legislature perhaps presumes that this sort of sex is immoral. One could debate the virtues of this but that would be a waste of time. The law is that this is illegal and the courts are bound to uphold the law unless they rule the law unconstitutional. We have however demonstrated by example that not all sex for money is prostitution and that other elements seem to change the nature of the act.

For example, a woman has sexual intercourse with her boss to get a promotion. This is not prostitution even though her co-workers might call her a whore. The reason this isnít prostitution is that she knows her boss. They are friends and they have a business relationship. They are not total strangers. The woman is more than a wet hole; she is a person with a name.

The sexual therapist recommends a sexual surrogate to help a woman who is frigid. He is an expert in his field even though he may have no formal training. He is still a total stranger. He talks to the woman to get to know her. He touches her gently to get her to relax and open up sexually. He then has intercourse with her and helps her with her sexual problem. He receives a fee for his services. This is not prostitution because the sexual surrogate is acting as a professional and is providing a personal service of helping a woman deal with a specific problem. They have a relationship. He is the healer and she is the patient and they are solving a problem. He is not a moving penis provider who is acting as a vibrator replacement. He is a person, and although they are strangers, the sex is personal. Because the sex is a personal act between two people who have a relationship, the act is not prostitution, even though it is sex with a stranger for money.

Two people are making a movie together. They are filming the love scene. They are engaged in simulated sex. They are naked and their genitals are touching although he is not in her, his penis touches her clitoris and they are sexually excited. They generally use very attractive people to play these roles. If the sex looks hot on the screen is most be very sexual to be there when it is being shot. In the scene he licks her body and the camera captures her response. Although itís not sexual intercourse, it is sexual contact that falls within the meaning of the statute. The two actors have never met before this movie was made. But yet it isnít prostitution because these people are professional actors. They do this for a living. Itís their job and they are relating as one professional to another to make a movie, and they are being paid money to do it. But itís not just a warm wet hole. The act has meaning beyond the sexual act.

It seems that the intent of the legislature is to prevent sexual contact that involves only genital stimulation between total strangers with no other redeeming factors involved. If the act involves other factors then it is not merely a hard penis ejaculating into a wet hole. If the people involved have a relationship as co-workers, friends, or a client patient relationship, then the sex for money is not prostitution. Therefore the question is, is the services that are provided by escort services more like a whore at a truck stop? Or do escort services provide a personal service in the context of a professional/client relationship where there is a personal relationship in which a sexual act may or may not occur. Escort services are not in the sex for money business. It is a sexually charged profession and human nature and human instinct sometimes causes two consenting adults to choose to have sex, which is their right under the law. But when they do, if that occurs, itís in the con text of getting to know each other and deciding that is what they want to do.

 

Escort Services are not Prostitution Businesses

Escort services are not prostitution businesses because escort services are not selling sexual contact for money. Escort services provide women (or men) for a variety of purposes. These purposes include dating, companionship, conversation, kissing, touching, massage, affection, someone to talk to, a shoulder to cry on, someone to be with, someone to help you feel more comfortable around women, someone to train you about how to be with women. There are a lot of services that escort services provide and they're legal services.

Letís look at what goes on in a typical bar on a Friday or Saturday night. Men go to bars looking to get laid. They are looking to have sex with a total stranger. This is totally legal. There are no laws prohibiting a person from having sex with total strangers.

Prostitutes often hang out in bars. A bar is probably the most common place to find a prostitute. The owners of the bars and the bartenders know that prostitution occurs in bars. In many cases, the bartenders either know or have a pretty good idea who the whores are. In fact, a person looking for a whore can ask the bartender whom he thinks is a prostitute and in many cases heíll point them out.

So a bar is a business where, among other things, men come to meet whores. Is a bar a prostitution business? No. So if a bar is a place where men come to meet whores, and the bar knows this and is aware that it occurs, and is making money selling drinks to men and whores, then why isnít a bar a prostitution business?

The reason a bar isnít a prostitution business is because itís a drinking establishment where people go to have a good time. They drink, dance, play pool, meet people, sing, get drunk, fight, and have fun. Part of having fun is trying to get laid. Sex, after all is part of human nature. What kind of a country would we have if we closed down every business where people go to get laid or find a hooker? Do we close down all bars because whores hang out there? Iím sure that maybe some Baptist preachers would like that. Might keep their daughters at home.

The reason that a bar isnít a prostitution business is because it provides other services that have little or nothing to do with prostitution. This is in contrast with the traditional whorehouse that is illegal because it sells only prostitution. Thus a business in which prostitution regularly occurs with the knowledge of the owner is not a prostitution business unless it is only in the prostitution business. If itís primary business is not prostitution, even though it is known that prostitution occurs, and even though the owners of the business are knowingly profiting because of the prostitution, the business is not a prostitution business.

The question therefore is, is an escort service more like a bar or a whorehouse? Itís more like a bar. Itís the kind of business where some prostitution occurs, but escort services are in business to provide companionship, models, entertainment, and other personal services that are not sex for money services. Like a bar one must assume that some prostitution occurs. But like a bar, an escort service is not a prostitution business even if men often use the service to find a prostitute, and the owners know that some prostitution is likely to occur. And even if the owner of the escort service makes indirect money as a result of the prostitution activity.

Whores hang out in bars. Itís just the nature of the business. Some escorts are in a position where they are offered money for sex on occasion and take it. Thatís not what they are supposed to do, but it happens. Wal-Mart employees are not supposed to steal. Often they do and the management knows that there are always employees that steal. But Wal-Mart is not a criminal organization even though they know they have employees that steal.

Just because a particular business attracts a certain kind of crime doesn't mean that business is a criminal enterprise. Wal-Mart is not a criminal organization even though there are probably several hundred employees stealing from them at any one time. Bars are not criminal enterprise even though that along with prostitution, a wide variety of criminal activities occur in bars. There is more prostitution in bars than in escort services. Why then do we not bust the bars as prostitution businesses? Because bars are not prostitution businesses and neither are escort services.

 

What do escort services provide?

Escorts services provide people to be with for a variety of reasons.

A salesman comes to town to exhibit at a trade show. He needs to meet with people and needs extra help passing out literature from his booth. An attractive intelligent escort helps draw customers to his booth while he talks with interested clients.

A man is invited to a business dinner where everyone is bringing a date. His female friends are unavailable for the evening so he calls an escort service.

A man is about to get married. His buddies throw a bachelor party for him. They hire an escort to strip for him and lap dance.

A man is confined to a wheelchair. Once a month he calls an escort to spend some time with him. She talks to him, kisses him, and provides him with physical female contact. They have become friends and he sees the same escort every month. Other women want nothing to do with him.

A man is very shy and inexperienced with women. He wants to learn but has no female friends who he trusts to help him with his problems. He wants to be able to have a conversation about intimate issues with a woman who knows what she's talking about and is yet a stranger and not someone he will have to see again if he doesn't want to. He wants someone who will take her clothes off and show him things a psychologist won't show him. So he calls an escort.

A guy comes home from work one day and key puts his key in the door and it won't unlock. A few minutes later a couple of cops come up with an ex-parte order and tells him that his wife filed for divorce and is accusing him of child abuse. He can't even get his clothes. After several days of living in a motel room he calls an escort because he needs a stranger to talk to, maybe yell at, and someone to let him know that not all women are like his soon to be ex-wife.

An old man just lost his wife of 50 years. He needs someone to hold him while he suffers the loss but doesn't want to do it in front of anyone he knows. He calls an escort service.

A man isn't interested in a relationship. He has no desire to get married. However, he does want to be with women and he feels it's dishonest to allow a woman to think that she has a chance at marriage when he knows she doesn't. He's looking for a more limited relationship that fits his unusual lifestyle. He therefore sees an escort on a regular basis.

 

What about sexual contact?

Escort services do not provide sex for money. However, that not to say that sex never happens. Boys will be boys and girls will be girls. Remember there is the element of human nature. Escort service services are often a very personal experiences where men and women often become very emotionally intimate. Although a woman might have sex with the pizza delivery boy, which's not what he came over to do. Sometimes nurses have sex with patients in hospitals. This happens a lot, but it's not what the hospital is paid to do, even if it helps cure the patient. The same thing happens with escorts, but it happens more often because of the intimate nature of the work. It is safe to say that sexual contact between the client and the escort happens often.

But even if it happens often and everyone knows it happens often, does that make it a prostitution business? No it doesn't. Many people go to a bar for the sole purpose of getting laid. A guy asks the bartender if he know any women who tend to pick up guys and go home and have sex with them. The bartender says that "Barbie" will do you if you buy her enough drinks to get her drunk. You buy he drinks and she takes you home and you have sex. Barbie comes there every night to have a guy buy her drinks and have sex. Is the bartender promoting prostitution even though he knows that if you buy Barbie enough drinks she'll have sex with you? Not hardly. Why? It's a Bar! People go to bars to find people to have sex with. So why is a bar not a prostitution business when they know that many people go there for the purpose of getting laid and often have to exchange something of value in order to get sexual contact? The reason is that a bar is a business that serves alcohol. An escort service is a business that provides escorts. Like a bar, many people get laid, but that's just the nature of the business.

Escort services, unlike street walkers, are not in the business of taking money to provide only sex. Escort services provide a wide variety of services that are not sexually related. There are times that sexual contact does occur but it is not only sexual contact. It is sexual contact along with other activities such as emotional therapy, or the escort is attracted to the client, or the escort has had a long term relationship with the client and the escort wants to have sex with him, or the escort is teaching the client about women and decided to demonstrate the concept. These are acts involving sex where money has changed hands, but the client is buying other services and the sex either occurred spontaneously, or the sex was part of services that included other factors and was not an act that stood by itself.

 

Regular Customers of Escorts

As I stated earlier, there are many instances of sex for money that is not prostitution. If a man and a woman are dating and she won't have sex with him unless he buys her something of value, that's not prostitution. It's not prostitution because it occurs in the context of a relationship. It is not prostitution in the case of a sex clinic that provides a sexual surrogate as part of a treatment program because sex for money is done in the context of therapy. Thus sex for money is prostitution only in the absence of all other redeeming factors.

When most people think of prostitution, they think of what they see on television. Most people don't have first hand contact with sex workers or escorts and do not understand what they do. On television they show drug addicted street walkers who are beaten by black pimps who control them. This kind of prostitution does occur and the State does have an interest in being involved in that kind of scene. However, this scenario does not even remotely reflect the services provided by escorts and escort services.

Most clients of escort services are regular clients and most of these regular clients use the same escorts every time. Many of them have seen these same escorts over a period of years. When sexual contact occurs with a regular client, they are having sex in the context of a personal relationship. And a relationship can be personal even if it is a paid for relationship. Many people develop personal relationships with people who charge them money for services. Doctors become friends with their patients, but the doctor continues to charge you for her services. You might become personal friends with your lawyer, but you are still paying her to represent you. So the exchange of money for services does not make the service and less personal than a service that is given for free. People have to earn a living and someone who cares about you respects that.

One of the most common services provided by escort services and sex workers are surrogate relationships. It would be nice if we lived in a world where there was someone for everyone and everyone eventually met "the right one" and we got married and lived happily ever after. Wouldn't that be nice? But that's not the reality we live in.

The reality is that there isn't someone for everyone. There are many people in society that are so damn lonely they can't stand it. Many of they people have physical or emotional disabilities that either preclude the possibility of a relationship or reduce the odds to virtually zero. Some people have been so badly burned by relationships that they are not capable of what we call a normal relationship. Some people, such as business executives and politicians, have a lifestyle that is not compatible with traditional family life. Some people have untraditional tastes when it comes to relationships and are looking for experiences that are unusual but legal. Some people have been burned by the divorce courts so bad that they will never marry. We live in a society that is hostile towards marriage and family and there are a lot of people making a lot of money to destroy families. Thus, for many people, traditional family life is not an option/

So what are these people to do? Are they to live their lives without a relationship and without sexual contact? I'm sure that there are several religions that believe that they should. But fortunately we live in a free country where the individual is free from religious oppression and is not subject to the religious beliefs of other people's faiths. The State does not compel us to get married in order to have sexual contact. It's perfectly legal in America to have sex in the context of a relationship. In fact it's perfectly legal to have sex with a total stranger if there isn't any money involved.

In a surrogate relationship, as provided by sex workers and escorts, there may or may not be sexual contact. And if there is sexual contact, it's in the context of a relationship. That relationship is often a very personal relationship that has lasted for years. Many people have had longer relationships with they escorts than other important people in their lives.

Most people would agree, although it isn't universally true, that a traditional relationship is better that a paid for surrogate relationship. However, most people would also agree that a surrogate relationship is better than no relationship at all. If a person looses a leg they get an artificial (or surrogate) leg. The artificial leg isn't as good as the original leg but it's better than nothing. At least the person can continue to walk.

For those who can not have a normal relationship, escort services and sex workers provide a valuable service to society by providing surrogate relationships to people who would otherwise have none at all. As I have already previously stated, sex is an essential element in the individuals well being. We as humans have a strong instinctive need to have relationships and sexual contact and that desire doesn't go away because a person is physically or emotionally incapacitated.

When surrogate relationships aren't available, the individuals are driven by instinct and human nature to find whatever human contact they can. This often results in violence, stalking, rape, or a lot of unsocial behavior. It becomes an issue similar to a starving man stealing a loaf of bread. If we feed the hungry, we eliminate hunger related crimes. Surrogate relationships fulfill needs that prevent or reduce criminal activity resulting from needs not being met. When an individual is using surrogate relationships, they need not resort to patronizing prostitution. Escorts services therefore reduce prostitution by providing surrogate relationships. I believe that even though incidences of prostitution occur in the escort business, that the net result is an overall decrease in prostitution.

Although escort services do business with people passing through town on a one time basis, most of an escort service's business is regular customers who have established relationships with a particular escort. If sexual contact is involved, it is not the cold anonymous sex as depicted on television. Regulars have established a relationship with their escorts and if sexual contact occurs, it's personal contact in the context of the surrogate relationship. And sexual contact in the context of a long term surrogate relationship with a regular client is not what the legislature intended to prevent when they wrote the laws on prostitution. If this were prostitution, then a man who marries a woman for her money would be a prostitute. And I don't think that any prosecutor is ready to go there!

 

Burden of Proof

In order to prove that a person is running a prostitution business, the State has to prove several things. First of all the charges are criminal. Thus the State must prove its case beyond a reasonable doubt. If the judge or jury believes that the business activity might reasonably be a legal business, even if the business has some problems, then the State can not convict a person of the crime of promoting prostitution.

First of all the State must prove that prostitution occurred. One can hardly have a prostitution business without having prostitutes. There must be specific acts of prostitution and more than one prostitute in order to allege a prostitution business. One can hardly be running a prostitution business unless the State can prove prostitution occurred in the first place.

Even if there is some prostitution occurring, and the owners know it, and they are making money from it, it is not necessarily a prostitution business. A bar is not a prostitution business yet these things occur. Most bars, but not all, will at some time ask prostitutes to leave, especially if it becomes clear that they are only there for that purpose. If it is the policy of the bar to discourage prostitution then they aren't a prostitution business. It is not the duty of the business to do the work of the police. And it is not up to the business owner to form a legal opinion about every relationship that may lead to sexual contact as to whether or not it is prostitution.

Escort services provide a variety of services. The variety of services is very wide, much wider than services provided by a bar. Most of these services are personal services and they involve the interaction of people of the opposite sex, or sometimes the same sex, in emotionally and physically intimate situations. Because of the intimacy sexual contact often does occur. But the sexual contact that does occur is usually not prostitution. In the escort service business, very little of the sexual contact can be classified as prostitution because it is done between consenting adults in the context of a relationship and other services which are not prostitution.

The majority of calls to escort services do not result in sexual contact. Yet the client still pays the same agency fee as calls that do result in sexual contact. If the client is paying the same to the escort service whether or not sex occurs, then how can it be legally construed that the escort service is promoting prostitution? Even if the escort got an extra tip and performed an act of prostitution with the client, the escort service did not send her there to do that and does not get any extra money for the sexual encounter. If the escort service doesn't get any of the prostitution money then they are not a prostitution business and more that a bar is a prostitution business for selling drinks to prostitutes.

The State has the burden of proving that of all the services that the escort service provides, that prostitution is one of those services that is authorized, and that the owners of the escort service have actual guilty knowledge (the legal term is scienter) that legal prostitution was occurring and that the owners permitted it to occur and profited from it.

There are some crimes that are crimes whether or not the person knew they were committing a crime or not. The saying, "Ignorance is no excuse." Applies to some laws and not others. Some laws require the element of scienter. Not only must the person do something wrong, but they must know that they are doing something wrong. Perjury is an example of a crime that requires scienter. You can't be convicted of making a false statement to a court if you don't know that what you are saying is false. Similarly, you are not promoting prostitution if you send an escort on a call and you don't know that she is committing prostitution. And the State has the burden of proving beyond a reasonable doubt that you in fact knew that the escort was going to commit an act that clearly falls within the definition of prostitution.

In Missouri the crime of promoting prostitution in the second degree is, "A person commits the crime of promoting prostitution in the second degree if he knowingly promotes prostitution by managing, supervising, controlling or owning, either alone or in association with others, a house of prostitution or a prostitution business or enterprise involving prostitution activity by two or more prostitutes."

Notice the key word "knowingly". This means that the owner has to know what's going on and that what is going in is prostitution. In specifying that it must be knowingly, the intent of the legislature is to avoid convicting someone of promoting prostitution if they don't know that prostitution is occurring. Suppose that the owner of the escort is providing surrogate relationships that may or may not involve sexual contact for money. The issue of whether or not a surrogate relationship is prostitution is at least legitimately debatable. Even though a court may interpret the law differently than I do that a surrogate relationship that involves sexual contact is prostitution, I would think that any reasonable person could see where someone might believe that the service they were providing was not prostitution.

If the owner of an escort service believed that a controversial act that he reasonably believed was not prostitution turned out to be prostitution, is he guilty pursuant to the statute of promoting prostitution? I think not. The statute requires that he knowingly promoted prostitution. And if he believed that the service he was providing was not prostitution, and there was a reasonable basis for that belief, then he did not knowingly promote prostitution. At best he unknowingly promoted prostitution which is not sufficient to convict someone of promoting prostitution under the statutes of Missouri.

 


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This document is still under construction. I am interested in feedback on this so that I can continue to build arguments to protect the rights of sex workers. If anyone has anything to add to this feel free to email me about it.

I am specifically looking for good legal arguments and I'm looking for lists of services that escorts provide that are non-sexual.


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