State v. Washington-Davis, Minn.S.Ct., 6/29/2016. Mr. Washington-Davis challenges the statute that criminalizes the promotion of prostitution and the solicitation of individuals to practice prostitution, Minn.Stat. 609.322, subd. 1a(1)-(2) as facially overbroad in violation of the First Amendment. He also challenged the accomplice liability jury instructions and the sufficiency of the evidence. The court of appeals had already upheld the convictions, thereby rejecting the constitutional and other claims. Read about that here. Chief Justice Gildea also rejects all of these challenges. Here's how the court described the scheme:
The actions forming the basis for Washington-Davis’s convictions occurred between September 2010 and July 2012. During this period, Washington-Davis was involved in a family-operated prostitution scheme that was run out of his uncle’s house in St. Paul. Washington-Davis, his brother, Otis,2 and his uncles were all involved. The men solicited women into prostitution first by pursuing romantic relationships with them. Once each relationship was established, the men would typically tell each woman that she could make a lot of money through prostitution. After luring them into the prostitution scheme, Washington-Davis or one of his family members would take photos of the women and post advertisements depicting the women online, arrange for the women to engage in sex acts for hire at the St. Paul house, drive the women to meet customers on “out-calls” away from the St. Paul house, and keep most, if not all, of the money the women made. Although each woman reported primarily to one family member, the other family members assisted with placing ads and transporting the women to out-calls. This case involves Washington-Davis’s conduct with respect to five women: J.M., B.R., S.A., C.B., and T.B. Four of them (J.M., B.R., S.A., and C.B.) testified at trial.
As he did in the trial court and court of appeals Mr. Washington-Davis said that the statute applies to people who promote or solicit consenting adults to participate in constitutionally protected films or photographs involving sexual contact. The state countered that the statute does not reach protected First Amendment speech unless there is a showing that such a film or photograph is produced for the purpose of satisfying the actor's sexual impulses. The Chief concludes that the hiring of adults to perform or pose in a sexually explicit film or photograph is done for the purpose of making a film or photograph and "will not usually violate the statute." Such hiring - speech - falls under the statute only if the state can show that the purpose in hiring was to sexually gratify the performers. The court leaves to another day just how to make this differentiation.
More troubling is that the court doesn't really answer the question whether such hiring is or is not protected speech. That's because after listing the arguments pro and con the court then assumes that the statute does restrict some protected speech and then moves on to the question whether such restrictions are substantially overbroad "in relation to the statute's plainly legitimate sweep." Not just substantial but "real." The court can find no evidence in the record that any protected speech is, in fact, being chilled or likely to be chilled as a result of the promotion and solicitation statute. Whether any film producer is in fact being prevented from soliciting performers for pornographic films is purely speculative on this record.
On the accomplice liability jury instruction the state conceded that the instruction that the trial court gave was wrong under State v. Milton, 821 N.W.2d 789 (Minn.2012). The problem was, though, the instruction actually given went beyond what Milton requires because it told the jury that the state had to prove that Mr. Washing-Davis, himself, acted with the specific purpose of either soliciting a specific victim to practice prostitution or promoting the prostitution of a specific individual. The actual burden is to prove that Mr. Washington-Davis knew that a codefendant planned to commit a crime and intended his actions to further it.
Finally, the court had no difficulty concluding that the state's evidence had been sufficient to uphold the convictions.
No comments:
Post a Comment