Depending on the Virginia county and allegations involved, negotiation options sometimes are limited when a criminal defendant is accused of providing or soliciting prostitution, or keeping or visiting a bawdy place. As always with settlement negotiations that are not successful, trial remains the only option.

Nevada’s legalization of brothels in counties with populations under 70,000 shows that the sky does not fall with legalized prostitution. Nor has the sky fallen in other nations and cities and towns of all sizes worldwide where prostitution either is legal or quasi-legal. We waste scarce government law enforcement resources and dollars by pursuing arrests and prosecutions for consensual commercial sexual activity, when more serious crime like rape, robbery and murder require law enforcement attention.

In any event, stings and arrests under the prostitution and bawdy place statutes are common in my headquarters county of Fairfax. Today’s blog entry addresses a recent acquittal I obtained in a prosecution for visiting a bawdy place and for disorderly conduct, starting with preparation I address with clients charged with violating prostitution and bawdy place laws.

When a client is charged with offering or soliciting prostitution, or keeping or visiting a bawdy place, I recommend that the client proceed with the following to assist with case negotiations and any possible sentencing; obtain a clean HIV test, to obviate any concern that my client has been spreading the disease; perform a minimum of twenty-four hours of documented voluntary community service with a non-profit organization or nursing home, to show my client already has paid society a benefit offsetting his or her alleged crime, whether or not culpable; and seek a psychologist’s written prognosis concerning the extent to which my client is not likely to commit prostitution-related offenses in the future, to portray the matter as not needing a prostitution or bawdy place conviction to avert repeating such behavior in the future.

As with all criminal defense, my approach in negotiating a resolution of prostitution and bawdy place cases with prosecutors is from a position of strength in being fully combat/trial ready, showing the prosecutor the mutual wisdom of reaching a resolution that averts a conviction for prostitution or bawdy place involvement, and underlining the extent to which my client has turned over a post-incident date new leaf and the extent to which my client’s career or security clearance is at risk if convicted.

In negotiations such cases, the prosecutor may be considering such factors as his or her chances of winning at trial, the prosecutor’s interest in seeing how a particular judge or jury will rule with the existing allegation pattern, the seriousness or not of the allegations and the defendant’s criminal record, presenting the appearance of consistency in negotiating such cases, the goals of the chief prosecutor, and the prosecutor’s own sense of cringing or not over the allegations.

Different people have all sorts of ranges of sexual appetites and kinks. Behind even the calculators of many otherwise unassuming accountants and spreadsheets of plenty of insurance salespeople and car salespeople are kinks galore, running from A to Z and Mercury to Uranus. So long as adults consent to sexual activity, whether commercial or not, and no matter how much the activity deviates from Puritan, marital sexual activity, consensual sexual activity — whether commercial or non-commercial — should be a matter of choice between or among the adults.

I do not judge my clients for their sexual preferences nor appetites. Consensual sexual choice is a civil liberty, and by my standing up for that choice, I am standing up for my own civil liberties, just as my standing up for marijuana legalization furthers my own personal civil liberties, even though I have no interest in consuming marijuana even in places where it is legal.

Here are details on my recent bench trial acquittal for my client charged with visiting a bawdy place and with disorderly conduct:

First, I made a brief opening statement, where I tried not to introduce discovery that might not ever see the light of day at trial, to include:

• The prosecutor will be unable to prove the allegation of visiting a bawdy place where, as here, the evidence will not show that the hotel involved in the case had any prostitution activity — if at all — beyond the one isolated incident involved in the apprehension of my client. This was but a hotel, with no evidence of a continuing course of conduct of prostitution activity at that hotel.
• The prosecutor will be unable to prove the allegation of disorderly conduct, where, for instance, the element is missing of directing one’s allegedly disorderly conduct at a particular individual.

The trial proceeded. The charging police officer testified that he found my client in a hotel parking lot acting suspiciously, and the officer was not satisfied that my client was present for strictly lawful purposes. The officer claimed he obtained my client’s consent to search his car. As to my suppression motion, which was incorporated into the trial itself, I cross examined the police officer along the following lines:

Q: When you started asking my client for consent to search his car, was he free to leave?

A. No.

Q. Were my client’s genitals or pubic hair exposed?

A. No.

Then I successfully argued that my client had been unlawfully detained, and that no further evidence was admissible concerning the interaction between my client and law enforcement. I said that whether the issue be reasonable articulable suspicion of criminal activity afoot under Terry v. Ohio or for the higher standard of probable cause, at the point that my client was not free to go when asked to consent to search his vehicle, sufficient suspicion was lacking that my client was engaged in or about to engage in criminal activity. Simply being present in a hotel parking lot does not amount to reasonable articulable suspicion of any crime.

My client’s having been unlawfully detained, his claimed consent to search his car was invalid, the evidence obtained from the search was fruit of the poisonous tree of the unlawful detention, anything my client told police after being unlawfully detained was fruit of the poisonous by my standing up for that choicetree, and that fruit of the poisonous tree had to be suppressed. Zimmerman v. Virginia, 234 Va. 609 (1988)

The prosecution rested, and the judge granted my motion to strike the evidence both as to the bawdy place and disorderly conduct counts against my client. That is to say, the prosecutor’s evidence failed to meet all elements — if even any elements — of those two criminal statutes.

How many times do police officers admit that the suspect was not free to leave this early in the investigation? Praised be my client’s charging police officer for admitting from the witness stand that at this stage my client was not free to leave. By doing so, the trial ended earlier than it otherwise would have. Perhaps the trial would have been more interesting had it proceeded further, but beware the purported Chinese curse “May you live in interesting times.”

Justice ultimately was achieved in this case. Days like these make the stormier ones easier to weather.