Copping a Feel
Initially, there was nothing unusual about the case of a 41-year-old Minneapolis woman who was charged for prostitution last September. Like many of the 1,016 prostitution arrests made by the city's police that year, the bust was a result of an undercover sting.
Officer Charles Greaves was working in the third precinct, where residents had recently complained about the presence of streetwalkers. A little after 8:00 a.m., as he drove down Fourth Avenue South, near the intersection of 31st Street, Greaves spotted a Native American woman on foot. The two made eye contact. She waved at him. Greaves pulled over. She approached the car and hopped in the passenger side.
According to the officer's report, the suspect immediately asked Greaves if he was a cop. As is routine in such cases (and perfectly legal), Greaves said no. Still suspicious, the woman--who had been convicted on a prostitution charge in Minneapolis in 1998--then asked Greaves to "prove" he wasn't a cop, exposing her breast and asking the undercover officer to touch it. By his own account, Greaves complied with the request. Moments later, according to Greaves's report, the woman asked the officer if he "was interested in a blow job." After negotiating the price ($25), Greaves signaled his partners, and the suspect was promptly taken into custody and charged with a gross misdemeanor--prostitution with a prior conviction. In April, she pleaded guilty and was fined $50 and sentenced to a year in jail, with all but 45 days of the sentence stayed.
"It was a pretty typical case. I'd say 20 to 30 percent of the cases I deal with involve some sort of intimate touching by police," says Steve Simon, the woman's publicly appointed attorney. But Simon, a clinical law professor at the University of Minnesota who also serves as a special Hennepin County Public Defender, hopes that Officer Greaves's technique will soon become both unusual and illegal.
On August 14 Simon filed a petition with the Minnesota Court of Appeals, arguing that his client's conviction should be struck down on the grounds that the physical touching constitutes "conduct which shocks the conscience." The seldom-invoked principle--first articulated in a 1952 California drug case in which police pumped the stomach of a suspect to obtain evidence--holds that criminal convictions ought to be overturned if an officer's conduct is sufficiently outrageous. In Simon's view, the "intimate touching" of a suspect meets that standard. "As a society, I think we have to ask ourselves: How far will we allow agents of the law to go in enforcing these laws? Where does intimate touching stop?" Simon asks. "Are we going to allow digital penetration?"
To date, state and federal courts have yet to draw a line on the issue. In a 1978 case, the Minnesota Supreme Court ruled that it is legally permissible for an undercover vice officer to expose his penis in the course of making a prostitution case. According to Simon, though, the precise degree of allowable physical contact between officer and suspect is an issue that has seldom been explored.
Joan Peterson, a deputy in the criminal division of Minneapolis's City Attorney's Office, says some contact is inevitable, and courts need to examine the issue on a case-by-case basis. "It's hard to make a broad, sweeping generalization," Peterson opines. "I think what needs to be looked at is: Did the officer do what he did to make an arrest, or was his conduct somehow gratuitous? If it was gratuitous, we wouldn't prosecute. But we don't think this case was at all gratuitous."
Does the city have a policy limiting the contact undercover cops can have with prostitutes? "If we have one, we're not going to tell the public, because then the prostitutes will know how to screen officers," replies Peterson. A spokesman for the MPD referred questions about the department's policies to Sgt. Dale Burns, who did not return two phone calls. On the other side of the river, St. Paul police spokesman Michael Jordan declines to discuss his department's standards for physical contact in undercover operations. "There are protocols, but it's not something we want the public to know about," he says flatly.
For his part, Simon has noticed a gradual change in the cat-and-mouse interactions between undercover vice officers and prostitutes in Minneapolis. "Twenty years ago, we had cases where the women would ask the johns to expose their penises. And the officers did that. Then, maybe 15 years ago, the women would ask, 'Take out your penis and let me play with it,' and the officers did that," Simon says. "Then about 10 years ago, it became, 'Touch my breast.'" In one 1994 case, Simon recalls, an undercover Minneapolis officer working a sting operation in a sauna went so far as to kiss a woman between the legs. That, Simon adds, would have made a stronger test case for a "conduct which shocks the conscience" defense, but the point was rendered moot when the jury acquitted.
Despite the absence of a sure-fire screening method, many prostitutes still believe they can successfully identify vice cops. "Girls tell girls all sorts of things, and certain myths spread. Some of the girls even believe that police aren't allowed to lie," observes Kathleen Mitchell, a manager at Breaking Free, a St. Paul nonprofit that works to get women out of prostitution. "But I've also had women tell me that police have touched them, or they touched the police, or, sometimes a whole act has been completed. And then they still wound up getting arrested."
"And it's going to be her word against his," concludes Mitchell. "Who are they going to believe?"
According to Deputy City Attorney Peterson, however, touching remains a tactic of last resort among Minneapolis vice cops. "I've talked to a lot of these officers and, believe me, most of them don't like doing this," she explains. But if the appeals court rules that police cannot engage in any intimate physical contact, Peterson adds, busting prostitutes will become much more difficult in the future.
As Beverly Balos sees it, that would be a good thing. Balos, a law professor at the University of Minnesota who has written extensively on prostitution, argues that authorities should focus their efforts on the demand side of prostitution--and that means going after johns. "If you look at the statistics, you know that the overwhelming majority of people arrested are the prostituted women. But why are we targeting the most vulnerable actors here?" Balos asks. "If we want to help these women become self-sufficient, there is a whole host of things we could be doing rather than having them arrested and thrown in jail."
Simon, meanwhile, expects the appeals court will rule on his client's case by late fall. If the conviction is overturned, he says, cops may indeed have a more difficult time in undercover operations. If the conviction is upheld, she will have to serve her original sentence: 45 days in the Hennepin County workhouse. Such a ruling, he adds, would likely lead to a rise in intimate interactions between undercover cops and prostitutes. And women just like his client will continue to search for a fail-safe screening method to keep them from being put behind bars. "And we'll be asking ourselves again," Simon concludes. "Is there a line we don't want our police to cross?"
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