Instruction 7.480, Criminal Model Jury Instructions for Use in the District Court

SEXUAL CONDUCT FOR A FEE

I. PROSTITUTE

The defendant is charged with either engaging in sexual conduct for a

fee, or agreeing to engage in sexual conduct for a fee, or offering to engage

in sexual conduct for a fee — the activity that is commonly referred to as

prostitution.

Section 53A of chapter 272 of our General Laws provides as follows:

“Any person who

engages, agrees to engage, or offers to engage

in sexual conduct with another person

in return for a fee. . .

may be punished. . . .”

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

Commonwealth must prove two things beyond a reasonable doubt:

First: That the defendant either engaged, or agreed to engage, or

offered to engage, in sexual conduct with another person; and

Second: That the sexual conduct (was) (was to be) done in return for

a fee.

The defendant may be convicted only if the sexual conduct (was) (was

to be) in exchange for a fee — that is, if the transaction was of a

commercial nature.

From the passage of St. 1959, c. 304 until the enactment of St. 1983, c. 66, the punishment of

“prostitutes” was provided for in G.L. c. 272, § 53. Prostitution was defined as “common

indiscriminate sexual activity for hire, in distinction from sexual activity confined exclusively to one

person.” Commonwealth v. King, 374 Mass. 5, 12, 372 N.E.2d 196, 202 (1977). See Commonwealth

v. Walter, 388 Mass. 460, 463, 446 N.E.2d 707, 709 (1983); Commonwealth v. United Food Corp.,

374 Mass. 765, 767, 374 N.E.2d 1331, 1335-1336 (1978); Commonwealth v. Cook, 12 Met. 93, 97

(1846); Commonwealth v. A Juvenile (No. 2), 6 Mass. App. Ct. 194, 196, 374 N.E.2d 335, 337 (1978)

(prostitution comprises both “the performance of indiscriminate sexual acts for hire and the

indiscriminate solicitation or agreement to perform sexual acts for hire”). Acts of prostitution are not

constitutionally protected, since “[c]ommercial sex is performed for profit and the sexual contact

involved is incidental to that profit. . . . The decision to engage in the business of sex for money is

not the type of intimate, personal decision which is protected by the right to privacy”under either

Federal or Massachusetts law. Walter, 388 Mass. at 465, 446 N.E.2d at 710.

Statute 1983, c. 66 removed the word “prostitutes” from G.L. c. 272, § 53, and created a new statutory

offense (§ 53A) which punishes both the prostitute and the prostitute’s client. Commonwealth v. An

Unnamed Defendant, 22 Mass. App. Ct. 230, 234-235, 492 N.E.2d 1184, 1187 (1986). Therefore,

it is no longer necessary to define prostitution in terms of the King case.

II. CUSTOMER OR PROCURER

The defendant is charged with (paying) (agreeing to pay) (offering to

pay) another person to engage in sexual conduct with (him) (her) (some

third person).

Section 53A of chapter 272 of our General Laws provides as follows:

“Any person who

pays, agrees to pay or offers to pay

another person

to engage in sexual conduct

or to agree to engage in sexual conduct

with another natural person

may be punished. . . .”

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

Commonwealth must prove two things beyond a reasonable doubt:

First: That the defendant (paid) (agreed to pay) (or) (offered to pay)

another person; and

Second: That the payment was in exchange (for that person’s

engaging in sexual conduct) (or) (for that person’s agreeing to engage in

sexual conduct) with (the defendant) (or) (another person).

The defendant may be convicted only if the sexual conduct (was) (was

to be) in exchange for a fee, that is, if the transaction was of a commercial

nature.

See also G.L. c. 272, § 8 (soliciting for a prostitute).

SUPPLEMENTAL INSTRUCTION

The term “sexual conduct” includes (sexual

“Sexual conduct.”

intercourse) (anal intercourse) (fellatio, or oral sex involving

contact between the mouth of one person and the penis of

another person) (cunnilingus, or oral sex involving contact

between the mouth of one person and the female sex organs —

the vagina, vulva or labia — of another person) (masturbation of

another person) (or) (any other intrusion of a part of one

person’s body or some other object into the genital or anal

opening of another person’s body).

The term “‘sexual activity’ . . . encompass[es] all acts commonly understood to be

described by the term, including masturbation” of another as well as sexual

intercourse and deviate sexual intercourse, and is not unconstitutionally vague.

Walter, 388 Mass. at 463, 465-466, 446 N.E.2d at 709-710. See, e.g.

Commonwealth v. Gallant, 373 Mass. 577, 584, 369 N.E.2d 707, 712 (1977) (in rape

prosecution, “unnatural sexual intercourse” includes “oral and anal intercourse,

including fellatio, cunnilingus, and other intrusions of a part of a person's body or

other object into the genital or anal opening of another person's body”);

Commonwealth v. Guy, 24 Mass. App. Ct. 783, 785-787, 513 N.E.2d 701, 702-704

(1987) (in rape prosecution, “unnatural sexual intercourse” includes female-to-female

cunnilingus); Commonwealth v. Baldwin, 24 Mass. App. Ct. 200, 204-205, 509

N.E.2d 4, 7 (1987) (in rape prosecution, “unnatural sexual intercourse” includes

digital penetration of vagina, vulva or labia).