April 5, 2013

Maine Voices: When prosecuting, it's important to separate opinion, fact and fiction

When victimless crimes remain on the books, they should not be the subject of vigorous enforcement.

By Rinaldo Del Gallo III, a Massachusetts attorney

When looking at big stories like the Kennebunk Zumba prostitution case, we fail to ask the big question: "What is the legitimate purpose of criminal law?"

ABOUT THE AUTHOR

Rinaldo Del Gallo III is an attorney from Massachusetts.

Instead, with a shameless, voyeuristic prurience, tantalized by every salacious detail, we focus on a hot 30-year-old having sex with prominent members of the community for money.

Let's face it: Our fascination with Alexis Wright and the sex scandal is an appeal to our most base interest.

But as to that higher question, the legitimate purpose of criminal law is only to protect the rights of individuals from the unjust infringement of others.

Victimless crimes such as prostitution or pornography (under an obscenity charge) fail this test.

Not only is this the unprincipled invasion of the autonomy of the individual who has not violated the rights of others, criminalizing victimless crimes creates the evils associated with black markets, as Prohibition amply demonstrated.

It deprives the government of the opportunity to tax and regulate the behavior for the better good and creates the environment for extortion.

When victimless crimes remain on the books, they are best as an advisory caution, rather than the subject of vigorous (and often expensive) enforcement by police and district attorneys. 

For these reasons, I criticize both Kennebunk Police Chief Robert F. MacKenzie and York County District Attorney Kathryn Slattery for pursuing this case, at least on the charges of prostitution and promotion of prostitution.

York County Deputy District Attorney Justina McGettigan has said "taxpayers should be pleased" about the extravagant expenses associated with the incalculable police, prosecutorial and court time. 

Not only am I not pleased, I find the state's interest in the private affairs of one's bedroom outright creepy.

The police and the district attorney's office have responded that because prostitution is illegal, they have a duty to prosecute. 

This is a highly misleading assertion. 

It is important to separate fact from opinion, and both fact and opinion from fiction. 

It is a fact that law enforcement has police discretion to determine what crimes they want to bother to investigate and enforce.    

Similarly, it is also a fact that the district attorney's office has prosecutorial discretion to determine what types of crimes they would like to prosecute.    

It is, apparently, their opinion they should ignore such discretion and prosecute every crime on the books. It is my opinion that this is a pretty bad idea.   

But it is a complete fiction that law enforcement or the district attorney's office "had no choice" but to prosecute.

Alas, there is an even more bizarre unintended consequence of outlawing prostitution: What about Mark Strong's despicable behavior in surreptitiously videotaping the sexual encounters of Alexis Wright and her johns?

This is where the story really gets tragic.

In Maine, a person is guilty of the crime of violation of privacy if that person intentionally installs or uses in a private place, without the consent of the person (or persons) entitled to privacy in that place, any device for observing, photographing or recording.

A "private place" means a place where one may reasonably expect to be safe from surveillance, including, but not limited to, changing or dressing rooms, bathrooms and similar places.

Of course, there is an exception for law enforcement.

Obviously, one would reasonably expect that when they have sex with someone else, others would not secretly record it, unless you have the distorted logic of a judge.

So trial Justice Nancy Mills and the state's high court found an "ambiguity" when there was none in the lucid word "reasonable."

They improvidently ruled that not only must there be a reasonable expectation of privacy in that ordinary men would ordinarily expect privacy (which is all that the words of the statute called for) but that no man could justifiably expect privacy if the sex act secretly taped was also a crime -- even if almost all reasonable people would expect that a sex act would not be videotaped without the consent of all. 

If this does not make sense to you, you are thinking too logically and do not understand the fine art of adding judicial gloss through "interpretation" of the clear language of the legislature. 

Maine needs to modify its crime of invasion of privacy so that it is a crime for people to secretly tape record others consensually having sex, whether or not money was exchanged, both to promote privacy and prevent extortion.

In the meantime, the state should get out of the business of outlawing the sexual behavior of two consenting adults.

– Special to the Press Herald

 

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