By: Sandy Davidson
(Commentary) Last Friday, the Columbia (MO) Daily Tribune carried these ads (and more), with phone numbers, under the heading of ?Adult Personal Services? on page 9B:
Private Dancer. Young & Erotic. …
Happy New Year! 5’1″”, 110 lbs, 34D, redhead, discreet. …
**SPARKLE** Is Here to do what you want. …
Something to be Thankful for. Hot Chicks!! …
2 young, sexy chicks 4 the price of 1. In/Out. …
Sexy Sweet Brown Sugar. …
Kinky Co-Eds, New Year Special! …
DADDY?S LITTLE GIRL. …
The Tribune, on that same day, carried this news story on page 2A, along with the mug shots of five young women, under the headline of ?Five women arrested in prostitution sting?:
“”Columbia police conducted a sting operation yesterday to crack down on prostitution and arrested five women, including one who allegedly brought her kids to the local motel where the sting took place….
“”Columbia residents complained to police about ads in the classified section of a local newspaper and online, [Columbia police Sgt. Brian] Richenberger said. The ads were clearly advertising ‘sex for sale’ in the Columbia area, Richenberger said.
“”Officers yesterday made phone contact with the suspects and arranged for them to respond to the motel. Arrests were made after undercover officers determined the women were offering sexual acts in exchange for money, Richenberger said.””
While the Tribune reported that the ads for sex acts appeared in a ?local newspaper,? the local broadcast stations were naming the Tribune itself.
The Tribune?s article also said: ?A similar operation in May netted six arrests.?
Apparently undeterred by the publicity or thoughts of potential legal consequences, the Tribune continued its ads. On Sunday, Jan. 13, the ?Adult Personal Services? ads appeared on page 3F, with several repeats, joined by a couple of new ads, including: ?Swingers Gals. Couples, Discreet, fun! No male calls.?
What about criminal liability?
Under Missouri Revised Statutes ? 567.070.1, ?A person commits the crime of promoting prostitution in the third degree if he knowingly promotes prostitution.? This crime is a class D felony under ? 567.070.2.
But what constitutes ?promoting prostitution?? The definition appears in ? 567.010 (1):
“”… a person promotes prostitution if, acting other than as a prostitute or a patron of a prostitute, he knowingly (a) Causes or aids a person to commit or engage in prostitution; or (b) Procures or solicits patrons for prostitution; or…(f) Engages in any conduct designed to institute, aid or facilitate an act or enterprise of prostitution….””
The language is nebulous: Could a prosecutor argue that a newspaper is engaging in ?conduct designed to … aid or facilitate … prostitution?? The law was not designed to cover newspapers, but the concern must be that sometimes laws that are designed to cover one set of circumstances may be used to cover other circumstances that the lawmakers did not anticipate. For example, federal Racketeer Influenced and Corruption Organizations (RICO) Act has been used in creative ways by prosecutors.
Police showing up at the Tribune?s ad department with arrest warrants seems a highly unlikely possibility. However, law and its enforcement is an ever-changing matter. To say there is zero possibility for criminal liability for promoting prostitution may not be accurate.
In fact, prosecutors in Orlando, Florida, used state racketeering laws against three employees of the Orlando Weekly. The three were accused of aiding and abetting prostitution and deriving income from prostitution. Undercover agents from the Metropolitan Bureau of Investigation had posed as prostitutes to take out the ads. On Feb. 27, 2008, the case settled with the dropping of the charges and the newspaper agreeing to pay the MBI $10,000 for its expenses.
For more, see, e.g., www.orlandoweekly.com/features/story.asp?id=12198.
What about civil liability?
Personal ads such as those in the Tribune arguably are clearly ads for prostitution. But to what kind of damages could such ads lead? If a person answered the ad and ended up with a sexually transmitted disease, could he claim that the Tribune should incur some contributory liability because of the foreseeable risk of harm? What if the prostitute ?rolled? the person answering the ad? Could he claim foreseeable risk of harm and negligence on the part of the Tribune? To say that such a plaintiff would be unappealing to a jury seems an understatement.
There is perhaps an interesting wrinkle relating to the Tribune situation. The first successful case involving physical harm and negligence in the United States, so far as this author could determine, involved the Tribune. In 1983, the U.S. Supreme Court let stand the negligence suit brought by Sandra Hyde in Hyde v. City of Columbia, 637 S.W.2d 251 (Mo. App. 1982), cert. denied, 459 U.S. 1226 (1983).
The case began when Hyde walked down the main street of Columbia after midnight in August 1980. A man with a red beard and red hair, driving a red Mustang, pulled alongside her, opened his door, leveled a sawed-off shotgun at her, and ordered her to get in. She did. He then demanded, “”You will do what I want you to do or I will blow your brains out.”” As he drove around a corner, Hyde jumped out of the car and ran to safety in a nearby disco.
According to the court case, Hyde reported the incident to the police. Of course, she gave her name and address?a couple of facts that her assailant did not have until a Tribune reporter got a copy of the report from the police and the newspaper published her name and address the next day. Then, according to Hyde, the man started terrorizing her, stalking her at her home and workplace and making phone calls to give her messages such as, “”I’m glad you’re not dead yet, I have plans for you before you die,”” and, “”I wanted to refresh your memory of who I am before I kill you tonight.””
Hyde brought suit, alleging negligence by the city in disclosing her name and address and negligence by the newspaper in printing her name and address. The defendants argued that the information disclosed was a public record under Missouri’s Sunshine Law. Although the trial court ruled in favor of the defendants, accepting the public-record defense, the Court of Appeals for the Western District of Missouri ruled that Sandra Hyde did indeed have valid grounds to sue for negligence. The court of appeals concluded, “”[I]t was reasonably foreseeable that the publication of the name and address of the victim, while the assailant was still at large, was a temptation to [the assailant] to inflict an intentional harm upon the victim?a foreseeable risk the … defendants had a duty to prevent.””
Now, today, does the Tribune have any duty to protect prospective ?johns? from ?temptation? to inflict harm on them? Of course, in the Hyde case, it was clear who the victim of intentional harm might be, namely, Sandra Hyde.
If civil liability started flowing from ads for ?adult personal services,? then the floodgates would seem to be wide open. Clearly, someone might have a car wreck from answering an ad for the sale of a car. A real estate agent might be raped or robbed by a person answering a ?for sale? ad for a home. Such ?foreseeable? risks of harm seem beyond the scope of negligence law.
Any john suffering from a sexually transmitted disease as a result of the ad would just have to get his own medicine, especially in light of the fact that Missouri law makes ?patronizing prostitution? a crime. It is a class B misdemeanor?unless the individual being patronized is under 18. If the prostitute is 14 to 18 years old, patronizing is a class A misdemeanor. If the prostitute is under 14, patronizing is a class D misdemeanor, and the patronizer can also be prosecuted for statutory rape or sodomy, according to Missouri Revised Statutes ? 567.030.
But what about ethics?
Granted, ad revenues are getting tight. Jobs are scarce, as well. But so long as prostitution is a crime and patronizing a prostitute is also a crime, should newspapers run ads that clearly hawk prostitution services? What is the difference between running ads for prostitution and running ads for illegal gambling or illegal drugs?
And if the ads run in one?s own newspaper, what about the ethics of just reporting that the ads ran ?in the classified section of a local newspaper??