Posted by Edmund R. Folsom
July 24, 2014

The Maine Legislature made some changes to Maine’s prostitution statutes over the past year or so, attempting to address the problem of “human trafficking” or “sex trafficking.” Some odd twists have resulted from these changes. Last year, LD 1159, “An Act to Address Human Trafficking, Sex Trafficking and Prostitution,” was enacted, becoming effective on October 9, 2013.  This legislation revamped the old offenses of promotion of prostitution, aggravated promotion of prostitution, and patronizing prostitution of a minor into the new offenses of sex trafficking, aggravated sex trafficking, and patronizing prostitution of a minor or person with mental disability. The bill also changed the available range of punishment for engaging a prostitute. Prior to LD 1159, both first-offense engaging in prostitution and first-offense engaging a prostitute carried identical maximum punishments. Both Class E crimes were punishable by a fine only, up to a maximum of $1,000.00. LD 1159 eliminated the fine-only limitation for engaging a prostitute, but left the limitation intact for the crime of engaging in prostitution. As of October 9, 2013, therefore, a first offender who engages a prostitute– by either paying or agreeing to pay for a sexual act or sexual contact– can be fined up to $1,000.00 or jailed for up to 6 months, or both. On the other hand, a first offender who engages in prostitution– by engaging in, offering to engage in, or agreeing to engage in sex for money– cannot receive any time in jail, but can only receive a fine of up to $1,000.00. In context, it is easy to understand how this came to pass, but it potentially leads to some odd and fundamentally unfair results.

As the title of the legislation indicates, LD 1159 was concerned with people being trafficked in the sex trade. The idea was to increase punishment for those who procure, entice and keep people involved in prostitution through coercion, including the use of violence, threats, and the administering or withholding of addictive substances. Viewed in this context, the disparity in maximum punishments between first-offense engaging a prostitute and first-offense engaging in prostitution makes sense. Those who engage in sex with enslaved young and disabled people help promote the business of human trafficking– their money flows directly to human traffickers. In this way, there are circumstances in which acting as a first-offense john can be much more serious than the most serious forms of acting as a first-offense prostitute. The maximum possible punishment for a crime should be proportional to the most serious way the crime can be committed, so the maximum punishment for engaging a prostitute should be more serious than the maximum punishment for engaging in prostitution. But removed from the context of human trafficking concerns, the disparity in available punishments for johns versus prostitutes lends itself to bad policy, as I will attempt to illustrate below.

I will go out on a limb and venture that there are women who engage in prostitution who are not enslaved by human traffickers or otherwise coerced into it. I venture that there are also men who have nothing to do with sex slavery who engage these women as prostitutes. And yet, if two such people find each other and do what each has bargained for, in Maine the female has the luxury of knowing she cannot be jailed for her first offense, while the male should know he can be hauled off to jail. Last year, a Google executive named Forrest Hayes died of a heroin overdose on his yacht near Santa Cruz, California. According to news reports, Mr. Hayes’ guest at the time was a prostitute named Alix Tichelman. Ms. Tichelman has recently been charged with Manslaughter in Hayes’ death, under the theory that she administered the heroin that caused his overdose. http://www.reuters.com/article/2014/07/16/us-usa-california-homicide-idUSKBN0FL27320140716. Let’s suppose the romp between Tichelman and Hayes took place while Hayes’ yacht was moored in Bar Harbor. Let’s also remove heroin from the picture for a moment and suppose the police busted the pair on a prostitution rap. Ms. Tichelman, seller of sex, could not get more than a fine for her conviction, but Mr. Hayes, the buyer, could go to jail. Why should Hayes actually receive a jail sentence while Tichelman receives a fine? Is Tichelman to be pitied for selling sex while Hayes is to be harshly punished for providing a market? Now let’s add the heroin back into the mix and suppose that Tichelman furnished or sold it to Hayes, and that Hayes did not die. As the furnisher or seller of the heroin, Tichelman would be liable for a much greater penalty than Hayes would be for buying it. Why? Shouldn’t Tichelman be pitied for selling heroin while Hayes should be harshly punished for providing a market?  After all, if there were no heroin buyers there would be no more heroin trade.

Just because jail sentences are available for first-offense johns and not for first-offense prostitutes doesn’t mean it is appropriate to jail all first-offense johns.  If jail for first-offense johns is confined to the context of sex trafficking, we will not end up with the Alix Tichelman patrons going to jail while all the Alix Tichelmans skate on fines. The trouble is, I am told, we now have prosecutors routinely seeking jail sentences for johns outside the context of sex trafficking, in cases that involve an attempt to solicit sex from an undercover police officer for instance.

To return to the changes worked by LD 1159, although that legislation left women exposed to less punishment for first-offense prostitution than their patrons can receive for their first-offense patronage, women were still left to be branded and fined as criminals for engaging in prostitution, even if they were coerced into it by sex traffickers. This anomaly was recently addressed by L.D. 1730, “An Act To Assist Victims of Human Trafficking,” which became effective on April 10, 2014.  L.D. 1730 makes it an affirmative defense to a charge of engaging in prostitution that the person was “compelled to do so,” and defines being “compelled to do so” in fairly broad terms. Now, a person who can establish that she engaged in prostitution because she was compelled to do so by a sex trafficker will no longer be stigmatized and fined as a criminal. This means that the only people who can any longer be convicted of the crime of engaging in prostitution are those who were not compelled to do so. And yet, those who choose to engage in prostitution still can only be punished by a fine for a first offense, while those who choose to pay for sex can be sent to jail for up to 6 months for a first offense. Is this because the Legislature has decided that, because some people who pay for sex end up promoting sex trafficking, all people who pay for sex should be treated more harshly than all people who receive payment to engage in sex? This is highly unlikely.

Apart from creating an affirmative defense to the charge of engaging in prostitution, LD 1730 also created an “assessment” to be leveled against those convicted of certain crimes, to help compensate victims of human trafficking. The assessment is $500.00 for conviction of sex trafficking, a first offense of engaging in prostitution, or a first offense of patronizing the prostitution of a minor or mentally disabled person. The assessment is $1,000.00 for conviction of aggravated sex trafficking, a second or subsequent offense of engaging in prostitution, or a second or subsequent offense of patronizing prostitution of a minor or mentally disabled person. These assessments represent an apparent legislative determination of the relative degrees of culpability for human trafficking among various players in the prostitution trade. On the patronizing/engaging a prostitute side of the ledger, the Legislature apparently determined that those who patronize the prostitution of a minor or mentally disabled person are culpable in human trafficking. On the promotion/engaging in prostitution side of the ledger, the Legislature determined that those who choose to engage in prostitution (those convicted of the offense because they were not compelled to do so) should also have to compensate victims of human trafficking. But note which category of prostitution offender the Legislature does not hold financially responsible to compensate victims of human trafficking: those convicted of engaging a prostitute, not involving a minor or a mentally disabled person. So when a D.A. routinely seeks jail sentences for those who are convicted of first-offense engaging a prostitute, if the argument for jail is rooted in the general culpability of johns for human trafficking, the argument flies in the face of the Maine Legislature’s own determination on that issue.

What then is the argument for a policy demanding jail for a first-offense engaging a prostitute conviction in general, in a statutory scheme where those who choose to engage in prostitution can only receive a fine? Is the argument rooted in anything other than a sexist belief that female prostitutes should be pitied for their fallen state, while their male patrons should be jailed for the exploitation and insult? I doubt it, and that belief is hardly good grounds for attempting to enshrine a double standard of routine jail-for-johns/fines-for-prostitutes as a matter of prosecutorial and judicial policy.


Ed Folsom

Addendum:  Here’s a link to a story about a woman charged with aggravated sex trafficking for prostituting a 17-year-old girl.  The last paragraph of the article is a doozy. http://www.centralmaine.com/2014/07/23/litchfield-woman-faces-felony-sex-trafficking-charge/    If the woman referenced in the last sentence of this article is busted for prostitution, she’ll only face a fine, but her patrons… they might go to jail.

Second Addendum, 2/28/15.

I recently received the following email regarding this posting:

Mr. Edmund R. Folsom:

The reality is that if you eliminate the ‘Johns’ from the equation (i.e. males/females purchasing human-beings for sex), ‘prostitution’ would cease to exist.  You seem to favor and sympathize with the plight of the ‘John’ while being under the assumption that prostitutes actually ‘like’ what they do.  Here is but one website (among many) which one would hope might enlighten you regarding your obvious bias in defense of the ‘poor Johns’ .

Not only is it justified that ‘Johns’ should receive this jail time as they are at the root of this problem, but prostitutes should ‘not’ receive a fine at all.  These are individuals who have been forced into prostitution due to extreme hardship (e.g. homelessness, drug addiction, sexually abused either during their childhood or their adulthood or both (i.e. literally ‘conditioned’ to allow others to utilize their bodies for sex), etc.).  If anything, we should have stricter/harsher consequences for ‘Johns’ as “up to 6 months for a first offense” is no where near enough while prostitutes should instead receive the shelter/sustenance, psychological and substance-abuse counseling, and educational opportunities necessary for them to get off the streets for good.


Catherine S. Caron


To This I Reply:

Ms. Caron’s email reflects underlying assumptions in a political movement to uniformly de-stigmatize prostitutes while uniformly punishing their patrons as accomplices in human trafficking.  The central theme is:  If Johns were eliminated human trafficking would end, because nobody would traffic people for sex if there were no buyers.  To begin, note the passive-aggressive ad hominem attack in Ms. Caron’s assertion that I “seem to sympathize with the plight of the ‘John’ while being under the assumption that prostitutes actually ‘like’ what they do.”   Whether any prostitutes actually like what they do is entirely beside the point.  Lots of people voluntarily engage in behaviors that I personally view as vile and self-destructive, and lots of people do things for income that they find barely palatable.  But unless you are willing to accept that all sex-for-money exchanges involve sellers who are victims of human trafficking, isn’t it possible to rationally believe it’s bad policy to punish people as accomplices in human trafficking who in fact are not?   Evidently even if it’s possible to rationally believe that, it’s nevertheless unwise to express it unless you want to be cast as complicit with the villain in this morality play.

Check out the link Ms. Caron provided in her email.   It connects with an advocacy piece whose central theme is summarized in the following quotes:  “[T]he experience of prostitution is just like rape,” and “Prostitution is an act of violence against women which is intrinsically traumatizing.”   I also note that the piece refers to prostitutes exclusively as “women” (some of whom started as “traditional wives” before escaping their abusive husbands and turning to prostitution to support themselves and their children) or “girls.”  So there you have it:  All prostitutes are women or girls who have been forced into the sex trade by human traffickers;  Johns are all men who, when they pay these females for sex, are raping them; therefore all these men should be jailed for a long time and all these women should be pitied and supported for making money this way; and if you’re not down with this cause, you simply haven’t been properly educated or “enlightened” on the subject.

I do get it.  One size fits all because, in furtherance of the agenda, the ends justify the means.  Never hesitate to break a few other peoples’ eggs to make your omelet.