In 1995, Howard County, Maryland, prosecutors dismissal a shameful sting prosecution against some workers at a massage parlor who some undercover police permitted not only to masturbate them, but apparently to do it to completion, which means such police truly were mixing business with misplaced pleasure (for how could the completion have been possible had they not been experiencing pleasure?). A prosecutor in the case previously worked at the same Maryland Public Defender’s office as I; he would not reveal whether any of the sting police were married. The Baltimore Sun confirmed that some were, and that they claimed they obtained their wives’ permission to do so, which would make for an interesting psychodrama in itself.

Now criminal defense lawyers for such sting defendants have a great appellate case to fight back against such outrageous stings, which are outrageous for going beyond an undercover officer — posing either as a service provider or customer — getting an offer and agreement for paid sexual activity with a suspect, In Minnesota v. Burkland, Minn. Ct. App. No. A08-1784 (Nov. 24, 2009), a police officer initiated sexual contact with a masseuse by asking to touch her bare breast, for which he paid $30 extra to get exposed. That police initiation to fondle was enough for Minnesota’s Court of Appeals to overturn the masseuse’s conviction, even though she subsequently initiated a massage of the officer’s genitals, to which he responded with a request for a full “release,” which she agreed to, but she declined his request for intercourse. The Court said:

We conclude that when a police officer’s conduct in a prostitution investigation involves the initiation of sexual contact that is not required for the collection of evidence to establish the elements of the offense, this conduct, initiated by the investigating officer, is sufficiently outrageous to violate the “concept of fundamental fairness inherent” in the guarantee of due process. Morris, 272 N.W.2d at 36. In light of our decision, we need not reach Burkland’s challenge to the sufficiency of the evidence.

D E C I S I O N

Because, in this prostitution investigation, the government engaged in outrageous conduct in violation of the guarantees of due process in the United States and Minnesota constitutions when the investigating officer initiated and permitted the escalation of sexual contact that was unnecessary to any reasonable investigation, appellant’s conviction is reversed. Reversed.

Thanks to a fellow listserve member for posting the Star Tribune article on this wonderful appellate victory.