Sexual conduct for a fee is a crime in MA. Massachusetts General Law, Section 53A of Chapter 272, addresses the offense commonly known as prostitution. Massachusetts prostitution laws or solicitation laws apply to both the person offering sexual services (the prostitute) and the person seeking to pay for such services (the customer or procurer).
Elements of the Sexual Conduct for a Fee in Massachusetts
The prosecutor, known as the Commonwealth, must prove two essential elements beyond a reasonable doubt:
- The act or agreement to engage in sexual conduct
- The exchange or proposed exchange of a fee for this conduct
It’s crucial to note that the transaction must be of a commercial nature for a conviction to occur.
Prosecution of Prostitutes
When prosecuting an individual for engaging in prostitution, the law states that 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.
What Proof is Required?
To secure a conviction, prosecutors must demonstrate:
- The defendant engaged, agreed to engage, or offered to engage in sexual conduct with another person
- This sexual conduct was or would be done in return for a fee
Prosecution of Customers or Procurers
The law also addresses those who seek to pay for sexual services. It states that 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.
Proof Requirements
For a conviction in these cases, prosecutors must show:
- The defendant paid, agreed to pay, or offered to pay another person
- This payment was in exchange for that person engaging in or agreeing to engage in sexual conduct with the defendant or another person
Definition of Sexual Conduct
The law provides a broad definition of “sexual conduct” to encompass various sexual activities. This includes:
- Sexual intercourse
- Anal intercourse
- Fellatio (oral sex involving the penis)
- Cunnilingus (oral sex involving female genitalia)
- Masturbation of another person
- Any intrusion of a body part or object into the genital or anal opening of another person’s body
This comprehensive definition ensures that the law covers a wide range of sexual activities that may be exchanged for a fee.
Legal History and Context
The current law evolved from earlier statutes. Prior to 1983, prostitution was defined under G.L. c. 272, § 53 as “common indiscriminate sexual activity for hire, in distinction from sexual activity confined exclusively to one person”. The 1983 amendment (St. 1983, c. 66) removed the word “prostitutes” from this section and created the new offense under § 53A, which now punishes both the prostitute and the client.
Constitutional Considerations of Sexual Conduct for a Fee
It’s important to note that acts of prostitution are not constitutionally protected. The Massachusetts Supreme Judicial Court has ruled that commercial sex, being performed for profit with incidental sexual contact, is not the type of intimate, personal decision protected by the right to privacy under either Federal or Massachusetts law.
Selective Prosecution Concerns
An important legal consideration in the application of this law is the potential for selective prosecution based on gender. The Massachusetts Equal Rights Amendment (Article 106 of the Articles of Amendment to the Massachusetts Constitution) requires that charges against female defendants be dismissed with prejudice if it can be shown that the particular police department or prosecutor’s office consistently prosecutes female prostitutes but not their male customers[1].
This provision aims to ensure equal application of the law and prevent gender-based discrimination in prosecution.
In conclusion, Massachusetts law on sexual conduct for a fee is designed to address both sides of prostitution transactions, defining the offense broadly to encompass various forms of sexual activity. The law’s evolution reflects changing societal views and attempts to ensure equal application regardless of gender. Understanding these legal nuances is crucial for those creating content on this topic, whether for legal education or SEO purposes.
