Instruction 7.140, Criminal Model Jury Instructions for Use in the District Court

DERIVING SUPPORT FROM EARNINGS OF A PROSTITUTE

G.L. c. 272, § 7

The defendant is charged with knowingly (deriving support

from) (sharing in) the earnings of a prostitute. This statute makes it a

crime to engage in “pimping,” that is, “knowingly and intentionally

profiting from the prostitution of another.”

In order to prove the defendant guilty of this offense, the

Commonwealth must prove the following three things beyond a

reasonable doubt:

First: That a particular person was engaged in prostitution. A

prostitute is a person who engages in sexual activity for hire;

Second: That the defendant had knowledge of, and intended to

profit from, this person’s prostitution;

See Instruction 3.140 (Knowledge).

(and)

Third: That the defendant shared in some way in the earnings or

proceeds from that person’s prostitution.

Note that this statute requires a mandatory minimum sentence of two years.

Commonwealth v. Lightfoot, 391 Mass. 718, 721 (1984). While the statute does not

provide for a house of correction sentence, any District Court sentence must be to the

house of correction. See id.; Commonwealth v. Graham, 388 Mass. 115 (1983);

Commonwealth v. Dupree, 16 Mass. App. Ct. 600, 605 (1983) (“The reference to State

prison may well indicate the Legislature’s use of the statutory shorthand for a felony, rather

than an intent to preclude a. . . sentence [elsewhere]. It did not compel a sentence to

State prison”).

The statute also punishes anyone who lives or derives support “from monies loaned,

advanced to or charged against him by any keeper or manager or inmate of a house or

other place where prostitution is practiced or allowed.” The model instruction may be

appropriate adapted.

Commonwealth v. Bracy, 313 Mass. 121 (1943) (defendant can be charged and convicted

solely for “shar[ing] in such earnings, proceeds or monies,” but complaint that omits any

antecedent for word “such” charges no crime); Commonwealth v. Thetonia, 27 Mass. App.

Ct. 783 (1989) (friend chauffeuring prostitute in exchange for occasional gas money and

drugs is insufficient; since statute is aimed at pimping, a minor indirect financial benefit not

sufficient); Commonwealth v. Roberts, 5 Mass. App. Ct. 881, 882 (1977) (statute is

constitutional). The defendant must intend to profit from the prostitution’s activities.

Commonwealth v. Brown, 481 Mass. 77, 87-89 (2018).