Entrapment Defense in a Prostitution Sting

[bees4]

My question involves criminal law for the state of: TN

I’m an unmarried male who was lured into a sting and arrested for “patronizing prostitution”, but would this qualify as actual patronizing, or something less maybe even entrapment?

Undercover agent responded to my ad on Craigslist seeking a woman for a sexual relationship (yeah I know shame on me but I was not willing to pay for sex). She asked if I could meet her in a parking lot new ME if I give her gas money.

I have been solicited many times but always reject prostitutes however she didnt seem like a prostitute, seemed like just a young girl mid 20s with sexual needs. After thinking about it I decided against it then she sent me a picture neck down of a very nice body, and called me on the phone and had a very nice voice and told me to bring condom, so I finally gave in and agreed to help her with gas money if she drove to meet me in parking lot.

I showed up skeptical but she was very attractive so I got in her car. She asked for gas money and I gave her just enough to fill a tank of GAS like she asked. I have a soft spot for girls who need gas money to drive out to see me, even if its just to meet for a social meal, so I totally fell for that.
She then went on to offer a bj which I did not accept, instead I expressed skepticism about doing it in a small car like she suggested. But she asked to see my condom she told me to bring, then the cops came & arrested me.

My questions:
1) Can it be considered entrapment since she contacted me, and asked me for gas money and for me to bring a condom, set up a meeting around the corner from my office, and reinitiated contact every day?
2) If she’d asked for a set price for any sexual act I would’ve refused, so she used the gas money ploy, but how is GAS MONEY considered payment for sex when I intended it to pay for her gas for her to drive to ME? I have OFTEN paid women gas money to drive to see me, because I have a nice house and enough money to help cut her expenses given the high gas prices. In fact, my last girlfriend always drove to me for almost a year since she couldnt host, so I always gave her gas money. Does that make her a prostitute too?

[Taxing Matters]

My questions:
1) Can it be considered entrapment since she contacted me, and asked me for gas money and for me to bring a condom, set up a meeting around the corner from my office, and reinitiated contact every day?

The essence of the entrapment defense is that government pushed someone to commit a crime who was not otherwise predisposed to commit that crime. Thus, it is not entrapment for the police to use an undercover agent to merely afford the opportunity for a person to act who is predisposed to commit the crime. The classic example is a cop on a street corner who says to you “hey buddy, you want to buy some crack?” The cop is in that instance simply opening the door to you; if you are already in the market to buy drugs, i.e. already predisposed to buy crack, you might bite and buy the crack. If you aren’t already interested, you’ll say “no thanks” and keep walking. Thus, that situation is not entrapment. The government is not pushing you to commit a crime where you are not initially disposed to do it. It is just providing an opportunity. As the Supreme Court explained:

Sorrells and Sherman both recognize ‘that the fact that officers or employees of the Government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution,’ 287 U.S., at 441, 53 S.Ct., at 212, 356 U.S., at 372, 78 S.Ct., at 820. Nor will the mere fact of deceit defeat a prosecution, see e.g., Lewis v. United States, 385 U.S. 206, 208—209, 87 S.Ct. 424, 425—427, 17 L.Ed.2d 312 (1966), for there are circumstances when the use of deceit is the only practicable law enforcement technique available. It is only when the Government's deception actually implants the criminal design in the mind of the defendant that the defense of entrapment comes into play.

United States v. Russell, 411 U.S. 423, 435–36, 93 S. Ct. 1637, 1644–45, 36 L. Ed. 2d 366 (1973).

Contrast that with a case in which the Supreme found there was potential entrapment. In that case, the defendant was convicted of buying child porn. But unlike the street drug dealer example above, the cops didn't just approach him one day, offer to sell child porn, and the guy bit on the opportunity and bought the stuff. Instead, the government did much more than that:

Had the agents in this case simply offered petitioner the opportunity to order child pornography through the mails, and petitioner-who must be presumed to know the law-had promptly availed himself of this criminal opportunity, it is unlikely that his entrapment defense would have warranted a jury instruction. Mathews v. United States, 485 U.S. 58, 66, 108 S.Ct. 883, 886, 99 L.Ed.2d 54 (1988).

But that is not what happened here. By the time petitioner finally placed his order, he had already been the target of 26 months of repeated mailings and communications from Government agents and fictitious organizations. Therefore, although he had become predisposed to break the law by May 1987, it is our view that the Government did not prove that this predisposition was independent and not the product of the attention that the Government had directed at petitioner since January 1985. Sorrells, supra, 287 U.S., at 442, 53 S.Ct., at 213; Sherman, 356 U.S., at 372, 78 S.Ct., at 820.

Jacobson v. United States, 503 U.S. 540, 550, 112 S. Ct. 1535, 1541, 118 L. Ed. 2d 174 (1992). The problem in that case was that the government went well beyond simply opening the door of opportunity to commit the crime. Instead, by bombarding the defendant with repeated mailings over more than two years enticing him to buy the child porn and including statements that suggested it was not illegal and he would be standing up for free speech rights by buying this stuff, the government pretty much pushed him through the door. He might not have been predisposed to commit the crime when the government started, but after a two year campaign he finally gave in.

What you described does not make an obvious entrapment defense. You were the one who first put in an ad looking for a sexual encounter. One might fairly think you might be interested in paying for it since many such ads are in fact preludes to prostitution hook-ups. The cop merely responded to your ad and made the offer — it was up to you what to do about it. There was a little bit of back and forth, but nothing suggests the cop used some kind intense pressure to push you into agreeing to anything. But certainly you will want to ask your lawyer about it.

2) If she’d asked for a set price for any sexual act I would’ve refused, so she used the gas money ploy, but how is GAS MONEY considered payment for sex when I intended it to pay for her gas for her to drive to ME? I have OFTEN paid women gas money to drive to see me, because I have a nice house and enough money to help cut her expenses given the high gas prices. In fact, my last girlfriend always drove to me for almost a year since she couldnt host, so I always gave her gas money. Does that make her a prostitute too?

In Tennessee, prostitution it means “engaging in, or offering to engage in, sexual activity as a business or being an inmate in a house of prostitution or loitering in a public place for the purpose of being hired to engage in sexual activity.” Tenn. Code Ann. § 39-13-512(6). And patronizing prostitution is defined as “soliciting or hiring another person with the intent that the other person engage in prostitution, or entering or remaining in a house of prostitution for the purpose of engaging in sexual activity.” Tenn. Code Ann. § 39-13-512(3). In short, the idea is that prostitution amounts to basically a business proposition in which you exchange of something of value for sex.

The issue I see here is whether you can convince a jury that you were not giving her the money for sex but rather just to compensate her for the cost to drive there, regardless of whether any sex occurred. If the jury is convinced that, whatever you both called it, the payment would only be made if she engaged in sex with you, that is likely enough to support the prostitution charge. On the other hand, should you convince them that the payment was simply a gift to cover the cost of gas to see you and was in no way dependent on sex you may win an acquittal. You can discuss that with your lawyer. If the cops recorded the conversation in the car that will be extremely important to hear to get a sense of what it will sound like to people who know nothing about you.

Not having seen the evidence against you I don’t know if you can successfully make the argument that you weren’t effectively offering to pay for sex. But I’ll offer this one observation: in my area most jurors would roll their eyes at hearing that the payment was for gas when made between two strangers whose entire conversation is a discussion about arranging for sex. They’d see that as just a pretext for what appears to be really going on: paying for sex. But maybe the way the conversation went might convey something more favorable to you, or perhaps jurors in your area would not be as cynical as those around me. If you heard that same conversation between two people you did not know, what would you think was going on?

[comment/ator]

If you heard someone state that they didn't think an unknown female (young girl, mid 20's) was soliciting prostitution, just had "sexual needs" she wanted met by an unknown stranger from the internet, there's going to be some heavy eye rolling going on.

[adjusterjack]

in my area most jurors would roll their eyes at hearing that the payment was for gas when made between two strangers whose entire conversation is a discussion about arranging for sex.

Especially since a "tank of gas" runs about $30.

[BooRennie]

Especially since a "tank of gas" runs about $30.

Depends on the vehicle.

[cbg]

No matter how I try, I can't seem to muster any sympathy for this (insert your favorite adjective for "worthless excuse for a human being" here). Shame this doesn't happen to more of the (same adjective, only plural this time) who can't bother to establish any kind of a relationship, aren't willing to control their hormonal urges, and think someone else should pony up (image unintentional) to service them. And while I am not advocating prostitution by any means, GAS MONEY? I mean, REALLY?

Yes, I fully expect to find this post deleted next time I return to it. Nonetheless, I call 'em like I see 'em.

Please note that nothing in my post is intended to be gender specific.

[Mr. Knowitall]

I’m an unmarried male who was lured into a sting and arrested for “patronizing prostitution”....

When you are the one doing the inviting, you're not the one being lured. It was your ad.

...I gave her just enough to fill a tank of GAS like she asked. I have a soft spot for girls who need gas money to drive out to see me, even if its just to meet for a social meal, so I totally fell for that.

Fortunately for you, the odds are extremely high that the entire exchange will be recorded. Also, the money you provided will be sealed in an evidence bag. You will thus be in a position to argue that absolutely nothing you said could be reasonably construed as a quid pro quo offer for a sexual act, that the amount you paid was entirely reasonable for the number of miles the girl had to drive to meet with you, and that there was never any haggling or discussion of price.

She then went on to offer a bj which I did not accept, instead I expressed skepticism about doing it in a small car like she suggested.

So your story is going to be that you offered her gas money, no strings attached, and gave her the money. Only then for the very first time did the undercover officer propose a sexual act, with no suggestion that this was in exchange for the gas money, and you said "No, I was giving you gas money as a gift, and I don't want a blow job" (or words to that effect)? Then the recording should be very helpful to your defense.

....and reinitiated contact every day?

What does "reinitiated" mean? You called her, she called you back? How long were you negotiating this meeting? Did you also negotiate over the amount of "gas money" you would provide?

[asa_jim]

In my jurisdiction all sorts of games are played by prostitutes. They don't ask for money, they ask for "100 roses". I imagine this is pretty universal. And there is never a conversation where someone says "I will pay you $XX in exchange for YY sex act". In one case the woman told an undercover officer simply that for $40 she'd do "everything". Nobody defined what "everything" was but the jury got the picture.

Whether it's paying for gas and free sex goes with the deal or something else, you were told to bring money and to bring a condom. You brought money and a condom. You gave the money and displayed the condom. So it can reasonably be inferred that you were prepared to pay money and engage in a sex act. What is a jury supposed to think?