While waiting in the Minneapolis airport for my flight home last week, the Minneapolis Star Tribune was reporting an appellate court decision arising out of a prostitution sting operation. The case is the State of Minnesota v. Burkland, A08-1784 (November 24, 2009).
A police officer posing as a customer went to a tanning and body works establishment after receiving a tip about prostitution. The officer arranged for a one-hour massage at a cost of $70.
The officer took off his clothes in the massage room. When the defendant entered the room, she offered to perform the massage topless for an extra $30. The officer accepted her offer.
As the one-hour massage progressed, the defendant discussed the benefits of a massage, stating, ‘it’s actually a thing with a happy ending, it does release, release endorphins in your brain.”
Eventually, the defendant asked the officer to turn over onto his back. He did and she continued the massage. The officer asked, “Do you think I can touch your breasts now.” The defendant answered, “Um-hmm.” The officer massaged the defendant’s breasts while she put oil on her hands and rubbed his genitals.
At that point, the officer asked, “Do you include the release with the 100 dollars?” and the defendant responded, “Yeah.” The officer then asked for additional sexual services with a condom; the defendant declined.
In its analysis, the court noted that the officer’s behavior was not necessary to dispel a suspicion that he was a police officer. The defendant made no demands of the officer to detect whether he was a police officer. The court also noted there was nothing in the record to indicate the officer believed it was necessary to initiate sexual contact in order to obtain evidence. [t]he officer could have successfully sought the necessary agreement to engage in sexual contact for hiring by inquiring about the charge for the “release” at almost any point throughout the almost one-hour long massage without ever initiating sexual contact by touching the defendant’s breast.
In reversing the defendant’s conviction, the court stated, “We conclude that when a police officer’s conduct in a prostitution investigation involves the initiation of sexual contact that is not required for the collection of evidence to establish the elements of the offense, this conduct, initiated by the investigating officer, is sufficiently outrageous to violate the ‘concept of fundamental fairness inherent in the guarantee of due process.”
What do you think of the circumstances and the court’s decision? Do you agree or disagree with the court? Will the prosecution appeal to the Minnesota Supreme Court and, if so, on what basis? Given the officer’s conduct, should the government have dismissed its case long ago instead of taking the Court’s valuable time? Should the officer’s conduct excuse the defendant’s conduct? Should the officer be disciplined – if so, how severely? How might this decision be applied to other criminal activity?