LLSO Review

Breaking Boundaries: Sexual Contact in Prostitution Stings and the Outrageous Conduct Defense

by Katherine Zhao

In 2019, Heather Strausbaugh posted an advertisement on Backpage.com, an online prostitution solicitation platform, and received a response from a prospective client. Their meeting took place at a hotel in Pennsylvania, where, following a brief conversation, the man undressed in bed and Strausbaugh started to massage his naked body, including his genitals. To her astonishment, the situation took an unexpected turn when a group of law enforcement officers entered the room and arrested her. This operation was a planned prostitution sting: the client, an undercover police officer.[1] 

That the undercover police allowed Strausbaugh to touch his genitals and engage in intimate sexual contact should shock many, yet this is not an isolated case. In 2007, a Seattle cop grabbed a dancer’s breasts several times during a sting operation.[2] In July 2015, three Minneapolis male police officers engaged in sexual contact with prostitutes[3] as part of sting operations.[4] In 2017, an Alaskan prostitute named Rachel had sex to completion with an undercover police officer before facing arrest. The list goes on.[5]

Today, prostitution remains criminalized in nearly all U.S. states and is subject to regulation under state laws.[6] For example, under the New York Penal Law, selling sex is a Class B misdemeanor that can result in months of imprisonment and a fine.[7] Given the consensual and private nature of prostitution, law enforcement often resorts to sting operations (stings), a deceptive technique used by officers to catch people committing, or attempting to commit, a crime. . However, prostitution stings pose a unique dilemma. To identify undercover police officers, many prostitutes explicitly ask potential clients for sexual contact, assuming that there are certain boundaries police officers cannot cross. On the other hand, undercover police officers are reluctant to let potential suspects evade arrest easily, and with a lack of stringent rules of conduct, they sometimes lie about their identity and engage in some degree of sexual conduct to establish evidence of the crime.[8] This is what Paula Torres, a human rights legal scholar and lawyer, terms "the paradox of sexual contact."[9] Whereas sexual contact can serve as crucial evidence to substantiate the exchange of sex for money, the engagement of such contact between an undercover police officer and a prostitute raises concerns about violating the due process rights of the individuals involved. As outlined in the Fifth Amendment of the U.S. Constitution, due process is the legal principle that guarantees individuals fair treatment, legal proceedings, and fundamental rights from the government before depriving them of life, liberty, or property. [10] Sting operations could potentially violate due process because, in such policing mechanisms, law enforcement officers may employ tactics of deception and manipulation to induce criminal activity, resulting in unjust arrests. Moreover, intrusive surveillance methods may infringe upon individual rights, such as privacy.

Sexual contact during prostitution stings is not uncommon. In such scenarios, individuals engaged in prostitution may invoke the defense of outrageous government conduct, stemming from the due process clause of the constitution, to challenge and overturn convictions resulting from questionable actions by law enforcement. This defense argues that the court should dismiss charges against defendants, in this case, prostitutes, when law enforcement's conduct in a criminal investigation is so extreme and shocking that it violates the fundamental principles of fairness and due process.[11] Within the context of prostitution stings, arrested individuals may seek dismissal by demonstrating that the use of sexual activity as an investigatory tactic is outrageous and significantly violates their autonomy as consenting citizens. However, the lack of clear criteria for determining what constitutes “unacceptable sexual contact” has sparked controversy in the practical application of this defense. The controversy surrounding the practicality of the outrageous government conduct defense arises from the tension between the need to uphold constitutional rights and the challenges posed by law enforcement tactics in combating prostitution. Moreover, it reflects the dual identity of prostitutes, who are seen as both offenders under the criminalization of prostitution in the U.S. and potential victims of sexual exploitation during law enforcement operations.

This paper investigates the legal and ethical imperatives around the invocation of the Outrageous Government Conduct Defense in cases involving sexual contact during prostitution stings. It argues for the expansion of this defense to better protect the rights of individuals engaged in prostitution, taking into account legal, feminist ethical, and practical considerations. I will begin with the legal history of the outrageous conduct defense and its frequent conflation with the entrapment defense, gradually narrowing the focus to the application of this defense concerning sexual contact in prostitution stings. Next, I will examine the resistance to this defense related to each government branch, and then present my rationale for preserving and expanding the availability of the outrageous defense in cases involving sexual contact during prostitution stings. In specific, I argue that the outrageous defense should be upheld due to the inadequacies of the entrapment defense, the unique nature of sexual interactions, and the widespread abuse of police power in the realm of prostitution policing. Lastly, I will propose alternative strategies for the future of prostitution policing and policy-making that go beyond mere expansion of the outrageous defense. These alternatives include redirecting sting operations to target buyers, enacting prohibitions on sexual contact in prostitution stings through legislation, and ultimately transitioning towards a decriminalization model that can potentially transform the historically adversarial or exploitative relationship between police officers and prostitutes into a more supportive and collaborative one.

From The Entrapment Defense to the Outrageous Government Conduct Defense

To understand the legal evolution of the outrageous government conduct defense, it's important to explore its precursor: the entrapment defense. The entrapment defense was historically evaluated through two distinct approaches: the subjective and objective approaches. Over time, the subjective approach became the prevailing criterion for assessing entrapment, while the objective approach transitioned into the foundation of the outrageous government conduct defense. In this section, I will first examine the development of both the subjective and objective approaches to entrapment. Then, I will trace how the objective approach, which centers on government misconduct rather than individual predisposition to crime, evolves into the outrageous defense. Finally, I will delve into the landmark cases, such as Rochin v. California and Hampton v. United States, that established key legal standards for determining the applicability of the outrageous defense.

The entrapment defense refers to the legal concept in which the defendant claims to be induced by law enforcement officers to engage in a crime they were not inclined to commit. The subjective and objective tests of entrapment defense were formulated in the landmark case Sorrell v. United States (1932), in which the defendant faced charges related to selling liquor during the Prohibition Era. The majority, endorsing the subjective approach, scrutinized the defendant's state of mind and predisposition. According to the subjective approach, if the defendant can demonstrate an absence of prior inclination or intent to commit the crime, entrapment will constitute a valid defense. In contrast, the dissenting opinion developed the objective test, which emphasized the conduct of law enforcement officers. This test posited that if police officers’ actions were likely to induce a law-abiding person to commit a crime, entrapment can be sufficiently claimed.[12] This objective approach places a major focus on government conduct, denying the relevance of an individual's predisposition to criminal behavior in validating entrapment defenses. While both subjective and objective approaches appear in Sorrell v. United States, the subjective test favored by the majority is predominantly employed by most courts.[13] The relatively straightforward criterion of the suspect’s individual predisposition facilitates its application in both federal and state courts. In contrast, the objective approach's reliance on a "case-by-case determination of facts"[14] regarding the nature of government conduct introduces a significant level of ambiguity into the assessment of entrapment defenses. Each case presents unique circumstances, making it challenging to establish clear and consistent criteria for determining whether law enforcement's actions crossed the line into entrapment.

However, concerns regarding government misconduct persist in cases involving sting operations, leaving some room for the viability of the objective approach.[15] In 1952, Rochin v. California was a landmark due process case that redirected attention to government misconduct despite predisposition. In this case, the court established the widely recognized "shock the conscience"[16] standard for evaluating police officers’ behaviors. In this case, to acquire evidence of drug use, three police officers unlawfully entered Rochin's home without a warrant. Upon witnessing Rochin swallow two capsules, they handcuffed him in a hospital examination room, forcibly opened his mouth, and extracted the contents from his stomach which would be used at trial to prove his guilt. The Supreme Court Justice Frankfurter condemned both the intrusion of police officers into private space and their employment of unreasonably cruel investigatory means, deeming such actions as conduct that "shocks the conscience" under the Due Process Clause in the U.S. Constitution. This "shock the conscience" standard, later termed the Rochin test, is now the predominant criterion for assessing cases of alleged police power abuse during investigations and served as a key inspiration for the development of the outrageous government conduct defense.

The outrageous government conduct defense officially originated from United States v. Russell in 1973. In Russell, an undercover agent aided the defendant, who was charged with drug manufacturing, in obtaining a critical ingredient as part of a sting operation. Although the Court upheld the conviction, it recognized the problematic nature of government conduct in this operation and acknowledged the potential validity of the outrageous defense in future cases. The Court explicitly recognized that it "may someday be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction."[17] This was the first declaration of the outrageous government conduct defense in legal history.

From that point forward, the entrapment defense bifurcated into two distinct trajectories. While the subjective approach became synonymous with entrapment defense, the objective approach gradually morphed into what is now recognized as the defense of outrageous government conduct. The First Circuit aptly noted that "outrageous misconduct is the offspring of objective entrapment, a doctrine largely abandoned in federal courts,"[18] signaling the diminishing relevance of the objective approach in entrapment defense and its emergence as the basis for the outrageous conduct defense. Therefore, in the (subjective) entrapment defense, the court continues to consider the individual's predisposition to commit the crime. Conversely, the outrageous conduct defense shifts the focus exclusively to the actions of the government, disregarding the defendant's predisposition and widening its applicability to include more defendants.

This bifurcation process was exemplified by Hampton v. United States (1976). In this case, the defendant obtained contraband drugs from a government informant and was subsequently arrested for the sale of drugs. Here, when both the suspect's criminal disposition and government misconduct were present, the majority opinion chose to align with the subjective approach to determine entrapment. It firmly stated that "[In Russell,] [w]e ruled out the possibility that the defense of entrapment could ever be based upon governmental misconduct in a case, such as this one, where the predisposition of the defendant to commit the crime was established."[19] However, two Justices criticized the term "ever" as overly absolute, arguing that constitutional limits exist on government conduct––an unconditional rule, regardless of police involvement in crime, contradicts the "fundamental fairness" of due process.[20] In the end, five Justices in the concurring and dissenting opinions expressed support for the viability of an alternative outrageous defense. They emphasized the applicability of the outrageous defense to predisposed defendants that entrapment defense fails to protect, thereby reinforcing the key distinction between the two defenses: the defense of entrapment, mainly referring to the subjective approach in practice, must take into account the individual's predisposition, whereas an outrageous conduct defense focuses on the government's actions regardless of the defendant’s predisposition and thus expands its availability to all defendants with or without predisposition. The underlying rationale is that even if a defendant possesses a criminal predisposition in committing a crime, they still have the right to be investigated in a reasonable and respectable manner by the government.[21] If the government infringes upon their due process rights, the conviction must be reversed.

To summarize, from its inception, the entrapment defense grappled with the balance between individual predisposition and government misconduct. Over time, the subjective approach gained prominence, emphasizing the defendant's predisposition to crime. Meanwhile, the objective approach, focusing on government conduct, paved the way for the emergence of the outrageous government conduct defense that aims to ensure due process and fairness for defendants.

Difficulties Faced by the Outrageous Defense in Prostitution Stings

Despite recognizing the outrageousness of police conduct as a potential defense, the court consistently exhibits a general reluctance to invoke it. Even in cases like Russell and Hampton, courts merely acknowledge its potential in the dissenting opinion without actually reversing the conviction of the defendants involved. It appears that although the courts may be inclined to uphold due process rights as a legal principle, they have reservations in fully setting aside criminal predisposition and allowing "criminals" to evade consequences in practice. Stephen Miller argues that the threshold for invoking this defense is often unrealistically high to the point that it becomes a myth.[22] The Sixth and Seventh Circuit Courts have even asserted that this defense "never had any life; and it certainly has no support in the decisions of this court." [23] 

The overall hesitancy to apply the outrageous defense, coupled with the unique paradox of prostitution stings, has heightened the difficulties in establishing clear rules for what constitutes conscience-shocking sexual contact in such operations. Not only does the court need to determine what qualifies as outrageous conduct, but it also faces the challenge of distinguishing the intention behind the sexual contact—whether it was driven by evidence-gathering objectives or personal motivations. The vaguely defined conscience-shocking standard allows for significant judicial discretion, to the point where it becomes almost non-existent as a test because it can be easily twisted to support either decision.

This can be seen in cases where courts deem conduct as not sufficiently outrageous without providing comprehensive and convincing rationales.

During prostitution stings, the first type of contact is characterized by passive responses from police officers, typically falling short of the Rochin test. In court cases such as State v. Morris and State v. Crist, the Minnesota Court determined that a police officer exposing his genitals in response to a suspected prostitute's request did not violate the due process rights of the suspects. [24] This decision, although still provocative, was relatively understandable for the courts because the officers responded to the prostitutes’ requests to avoid being identified, and the exposure of genitals was considered less intrusive than direct sexual contact.

Yet, as the scenarios became more extreme and police officers took up a more proactive role in sexual contact with prostitutes, the courts continued to show an "unshockable conscience." In Anchorage v. Flanagan, an undercover officer responded to a body massage advertisement and engaged in discussions with the prostitute, Flanagan, regarding the price of intercourse and fellatio—already sufficient evidence for convicting her of prostitution solicitation. However, it wasn't until Flanagan began to stroke his penis that the officer intervened, arresting her and allowing an unnecessary level of sexual contact to develop beyond what was required for a conviction. While the Alaskan Court acknowledged that this conduct "might be considered questionable," it determined that the police conduct did not reach the level of outrageous, failing to "shock the conscience" nor "violate the sense of fundamental justice" according to the Rochin and Russell tests.[25] 

Likewise, in State v. Tookes, the undercover agent engaged in full sexual intercourse with the suspect even after she had already agreed to exchange sex for money, which was sufficient for a solicitation conviction. The Tookes Court upheld the conviction, dismissing the defendant's due process defense alleging outrageous government conduct in the investigation: "Although Chandler's (the officer) conduct ... might be considered questionable, we do not think that this conduct even in the context of an investigation involving a relatively minor misdemeanor charge can accurately be characterized as outrageous."[26] The court relied on precedents from similar cases in the past that recognized the due process defense as a balance between crime detection and fair treatment, emphasizing that legal enforcement needs to prioritize the former.

These two cases demonstrated the pronounced reluctance to accept the outrageous defense in state courts, as well as highlighting the lack of a detailed test for determining outrageous police conduct, which gave rise to high levels of discretion in rulings.

The Cuervelo Test on Outrageous Sexual Relationships

In 1991, US v. Cuervelo marked a milestone as the first case to clarify a standard for determining whether alleged sexual relationships between undercover agents and suspects constitute as a form of outrageous government conduct. In this instance, undercover Drug Enforcement Administration (DEA) agent DeLaCova, posing as "Julio," approached defendant Gomez-Galvis, who was involved in cocaine processing. The agent openly admitted to cultivating a "love interest"[27] with the defendant, offering financial gifts, clothing, jewelry, and engaging in sexual relations on at least 15 occasions. Initially, the district court dismissed the defendant’s defense of outrageous government conduct, but upon appeal, the Second Circuit remanded the case and outlined a three-step test to be applied in subsequent hearings. In determining whether a sexual relationship between a suspect and a government agent is outrageous, and held that a defendant must show:

(1) that the government consciously set out to use sex as a weapon in its investigatory arsenal, or acquiesced in such conduct for its own purposes upon learning that such a relationship existed;

(2) that the government agent initiated a sexual relationship, or allowed it to continue to exist, to achieve governmental ends;

(3) that the sexual relationship took place during or close to the period covered by the indictment and was entwined with the events charged therein.[28]

Besides developing the Cuervelo test, the court also emphasized key factors to be established when applying this framework, including verifying the occurrence of sexual intercourse, determining if sex was deliberately used as a law enforcement tool, and crucially, discerning whether it was attributable to the government rather than solely the misconduct of an individual agent.

While this test initially evolved within the context of a drug sting, its significance extended to evaluating similar claims in prostitution sting operations, where instances of sexual misconduct are more prevalent, and the need for a distinct test tailored to sexual relationships are more apparent. Moreover, its departure from relying solely on vague terms like "conscience-shocking" marked a proactive step towards legal clarity and accountability. By defining sexual misconduct as a specific instance of outrageous behavior, the Cuervelo test created relatively clear legal criteria within a manageable framework.

Building on Cuervelo, in 2009, there was a case successfully reversed by the outrageous defense in prostitution stings. In Commonwealth v. Sun Cha Chon, the police conduct was deemed sufficiently shocking and outrageous by the Pennsylvania Superior Court based on the Cuervelo test. In this case, the police department compensated a male informant to receive oral sex and engage in sexual intercourse four times at a spa. The prostitute involved, Ms. Chon, was charged for prostitution, while the informant faced no conviction and received not only free sexual services but also additional compensation from the police department.[29] The court drew upon a reasoning that such conducts were unnecessary for investigation. In addition, it applied the Cuervelo test for outrageous government conduct in the context of sexual relationships between police and investigative targets. Given that Ms. Chon was able to prove (1) that the government consciously set out to use sex as a weapon; (2) that the government agent initiated a sexual relationship to achieve governmental ends; and (3) that the sexual relationship took place during or close to the period covered by the indictment,[30] the Sun Cha Chon court concluded that the government's conduct was indeed outrageous and released her.

The successful reversals of convictions in Chon based on the Cuervelo test bring new hope; however, concerns regarding the outrageous defense in prostitution stings persist. Importantly, the Cuervelo test possesses limitations in its phrasing of a "sexual relationship." Analysis of later cases citing Cuervelo reveals a consistent pattern: the test is predominantly invoked when sexual intercourse is involved, as evidenced by cases like US v. Dyess (2003), US v. Therrien (2017), and United States v. Carson (2023). These cases often focus on "having sex" or "sexual intercourse,"[31] with little mention of any sexual contact falling short of intercourse. Moreover, there is often a discussion on the duration of the relationship, implying that such incidents occur more than once: in US v. Therrien, the court examines whether the alleged sexual relationship was of a limited duration.[32] In United States v. Carson, the defendant mentioned having sex once a week for months.[33] As a reminder, in Chon, there were also four instances of intercourse at the spa. The consistent application of the Cuervelo test in cases involving an extended period of sexual relationship raises concerns about its extrapolation to instances where sexual contact occurs only once. It also remains unclear whether only sexual intercourse, and not any sexual contact short of that, is qualified for establishing outrageous conduct according to the Cuervelo test. There, the Cuervelo test does not automatically guarantee a similar outcome for the majority of cases involving one-time sexual contact in prostitution stings.

In 2009, State v. Burkland––a case that neither cited previous tests such as Cuervelo, nor explicitly set up new criteria for determining outrageous conduct––was successfully overturned. In this case, an undercover officer visited a tanning salon suspected of prostitution and engaged in sexual contact with an employee named Burkland. The officer not only allowed Burkland to stroke his penis but also took an active role to initiate the rubbing of Burkland’s breast and inquired whether a "release" was included in the cost. The Minnesota Court of Appeals deemed the officer's conduct sufficiently outrageous, commenting that he "initiated and permitted the escalation of sexual contact that was unnecessary to any reasonable investigation."[34] This situation stood in contrast to prior cases, such as Morris and Crist, where suspects demanded sexual contact and officers were merely responding to avoid detection. Here, the undercover officer proactively initiated sexual contact beyond the necessity of investigation in the absence of the prostitute’s request.

While Burkland yielded positive outcomes, it has generated new questions into how courts select and interpret tests concerning the outrageous defense. When juxtaposed with cases such as Flanagan and Tookes, confusion emerges regarding why similar circumstances and degrees of sexual contact can lead to markedly different court rulings. The absence of the Cuervelo test in Burkland further shows the discretionary power of the court in determining which criteria to employ. This is further exemplified by another post-Cuervelo case that didn’t employ the Cuervelo test, Alexander v. DeAngelo (2003), where law enforcement utilized a female informant in a drug sting against Alexander, who subsequently developed a romantic and sexual relationship with the informant. Regarding the defendant's outrageous government conduct defense, the court simply stated, "We flatly rejected the [outrageous defense], because the concept of outrageous police conduct is hopelessly nebulous and subjective and because the fact that the police misbehave is not a sensible ground for letting a guilty criminal walk."[35] This immediate rejection, without even delving into the details of the sexual interaction, showed the court's reluctance to embrace the outrageous defense. Courts possess the discretion to outright reject the defense and disregard the Cuervelo test entirely, even when the case they are dealing with perfectly falls into the scope of Cuervelo.

Resistance to the Outrageous Government Conduct Defense

To understand the resistance surrounding the outrageous defense requires, I explore reasons across three distinct dimensions, each corresponding to a different branch of the government: A) regarding the judicial branch, opponents of the defense raise concerns around the potential for unconstrained judicial lawmaking; B) the lack of formal codification of the outrageous defense in statutory law and the vagueness of the due process clause in the constitution pose challenges to the legitimacy and practicality of this defense; C) within the executive branch, there is a tendency to prioritize the interests of officers over rights of prostitutes.

A). One major concern is about judicial lawmaking and the potential encroachment upon the separation of powers.[36] This argument contends that if the Court possesses the interpretive authority to define what constitutes outrageous police conduct and can expansively redefine the boundaries of due process rights, they essentially have power in both the interpretative and executive domains of law. The ambiguity in the outrageous government conduct defense amplifies these concerns, with critics fearing it could introduce a "dangerous amount of judicial discretion into the decision-making process."[37] The central tension of this argument lies in the conflicting assertions of power, with the Executive Branch asserting its authority to carry out and review its own investigatory techniques, while the Judicial Branch maintains its role as the ultimate interpreter of what qualifies as a legitimate investigation under the due process clauses. Since the outrageous government conduct defense occupies a unique position at the crossroads of these two branches, it takes on a special challenge of finding a harmonious balance.

B). The deliberate broadness of the Fifth Amendment, designed to encompass a wide array of rights for future generations, introduces a level of ambiguity that causes concern for the Supreme Court. The Court has yet to overturn a conviction based on a Due Process violation by police conduct.[38] Some possible reasons include the Supreme Court's reluctance to reignite the debate between the "subjective" and "objective" approaches to entrapment, which is likely to resurface in discussions of the outrageous defense.[39] Additionally, the Court may want to avoid defendants' constant challenges to government investigative techniques grounded in due process law.[40] In both scenarios, there exists considerable pressure for the Supreme Court to establish a definitive reference point delineating the boundaries of government conduct, a strict interpretation of the vaguely worded due process clauses that the lower courts must follow. This hesitancy on the part of the Supreme Court creates a ripple effect, influencing State Courts to similarly refrain from invoking due process in their decisions.

The hesitancy is even more pronounced for the outrageous government conduct defense, a due process derivative lacking direct reference in federal law. The primary authority supporting this defense was Rochin, a California Supreme Court Case. While Rochin is commonly cited, its test of "shock the conscience" has not been defended by any court as an official "constitutional text or its original understanding," thus lacking a robust constitutional foundation.[41] Moreover, Rochin addressed a unique circumstance that also involved unreasonable police search and seizure under the Fourth Amendment. This specificity raises questions about its general applicability to other situations, such as prostitution stings, where the alleged violation pertains solely to Due Process rights, without implicating Fourth Amendment protections.

In summary, a tension arises between the intentionally adaptable nature of the Due Process Clause and the necessity for a well-defined standard in legal practice. On one hand, legislative intent aims to maintain due process clauses as abstract and flexible, allowing for broad application. However, the absence of a workable, consistent standard of outrageousness presents a challenge, undermining the defense's legitimacy, clarity, and practicality. This tension reflects the struggle to balance adaptability with the need for clear guidelines in evaluating government conduct.

C). Lastly, the Executive Branch emerges as a strong obstacle to the acceptance and expansion of the outrageous government conduct defense. Law enforcement departments have incentives to prioritize the detection of crime and the successful outcome of convictions over the potentially questionable means that may infringe upon the rights of prostitutes. This motivation is twofold. First, sting operations are resource-intensive endeavors, requiring significant time and effort to set up, and there is a desire to ensure that these investments yield results. Second, within the context of the criminalization of prostitution in the U.S., prostitutes are still perceived largely as suspects or criminals who may pose a threat to public interest and order.[42] As a result, their rights and victimization within the system may not receive adequate recognition.

In cases where suspected prostitutes initiate sexual contact, undercover police officers may perceive accepting it as a justifiable and, in some cases, a necessary component of a successful sting operation.[43] This perspective is based on the belief that agreeing to such advances is a crucial tactic to prevent suspects from easily discerning undercover officers from other clients. For instance, a suspected prostitute may insist on engaging in sexual activity before discussing the exchange of sex for money as a way to verify the authenticity of the buyer. In this context, police officers may feel justified in acquiescing to these requests in order to progress to the stage of discussing the exchange of money for sex, thereby establishing the necessary evidence for conviction.

In conclusion, resistance to the outrageous government conduct defense arises from concerns across the judicial, legislative, and executive branches. Judicially, there's apprehension over judicial lawmaking and potential encroachments upon separation of powers, with ambiguity in the defense empowering the judiciary to define due process boundaries. Legislatively, challenges stem from the lack of a robust constitutional foundation for the defense or a clear legal framework for evaluating outrageous conduct. Within the Executive Branch, law enforcement priorities, including the detection of crime and successful convictions, sometimes overshadow concerns for due process rights, particularly in cases like prostitution stings.

Advocating for the Outrageous Government Conduct Defense

Despite the prevailing reluctance to invoke the defense of outrageous government conduct, I assert that it should be upheld and advocated as a legal recourse for suspected prostitutes who were involved in sexual contact within prostitution stings. In this section, I will develop arguments for preserving this defense, emphasizing A) the inadequacy of the entrapment defense in court, B) the hesitancy to invoke the due process clause as a betrayal of constitutional intents, and C) the recognition of police abuse as institutional and gender violence against prostitutes.

A). Currently, the entrapment defense remains the predominant strategy for defendants alleging police mistreatment, with courts typically relying on the subjective approach to assess its validity. However, in cases involving sexual contact, for example, the outrageous government conduct defense will be more appropriate and advantageous for the defendant. Ensuring the availability of this defense when needed is crucial to addressing instances of egregious governmental abuse and safeguarding the rights of defendants.

The entrapment defense presents several drawbacks. Firstly, it lacks a constitutional basis, meaning that government enticement alone does not inherently violate an individual's constitutional rights.[44] Consequently, state courts enjoy greater flexibility in establishing criteria for entrapment, ranging from objective to subjective approaches to other alternatives, without direct oversight from higher courts to challenge their standards. In contrast, despite no direct codification, the outrageous government conduct defense at least can be traced to its legal basis in the due process clause of the constitution, symbolizing a more fundamental right and possessing a higher level of legal authority. This grants defendants an additional layer of protection by invoking their constitutional rights and appealing their cases to higher courts.

As a reminder, the key distinction between the entrapment defense and the outrageous government conduct defense lies in the concept of predisposition. While the outrageous government conduct defense focuses solely on potential police misconduct regardless of the defendant's predisposition to crime, the entrapment defense requires that the defendant lacks predisposition to commit the crime and was instead induced by the agent for the defense to stand. This fundamental difference means that the entrapment defense is obviously unavailable to defendants who do have a predisposition to engage in prostitution, thereby failing to effectively protect this group from sexual misconduct during sting operations.

Moreover, the inclusion of predisposition shifts the focus from government misconduct to an individual’s predisposition, implicitly suggesting that the acceptability of government conduct is contingent upon the defendant's innocence level. This inconsistency in standards poses significant issues, as it grants police officers greater authority and latitude in their conduct when dealing with individuals with criminal records or perceived "bad reputation,"[45] rendering actions that would otherwise be impermissible acceptable. In contrast, the outrageous government conduct defense, by disregarding individual predisposition to crime, prioritizes equal rights against police misconduct for all defendants, thereby imposing a stricter and more consistent constraint on government conduct in prostitution stings and preventing abuses of power.

In addition, one special advantage of the outrageous defense is that it’s a motion before trial and is solely adjudicated by the judge, whereas the viability of an entrapment defense depends on the jury's assessment of evidence, such as the suspect's criminal history, to evaluate predisposition. As highlighted in the dissenting opinion in United States v. Russell, in judging the entrapment defense, the burden falls on the prosecution to prove beyond a reasonable doubt that the defendant has predisposition, leading to the admissibility of various forms of hearsay, suspicion, and rumor—evidence that would typically be inadmissible in other contexts.[46] This evidence, used by the law enforcers to justify their conduct in sting operations, can result in a negative perception of the defendant's character that shapes jury opinion. Since the entrapment defense is adjudicated by a combination of jury and judicial deliberations, whereas the outrageous government conduct defense is solely determined by judges and does not require additional scrutiny of the defendant's criminal background or predisposition evidence, the entrapment defense risks further encroachment on the defendant's privacy and legal rights during the judicial process.[47]

B). Although the tension between the broad constitutional language and the need for a clear practical standard exists, rejecting the due process defenses altogether, merely because of this tension, would run counter to the legislative intent of the constitution. The deliberately broad definition of the due process clauses aimed to shield citizens from as many forms of government intrusion as possible, empowering the judiciary to "purge the vicious taint"[48] and outrageous conduct of law enforcement. Thus, courts should use the deliberate vagueness of the due process clause to endorse an expansive interpretation of what constitutes outrageous government conduct, rather than constraining it to solely the most extreme cases, as is the current practice. This approach would allow for the inclusion of cases that currently fall outside the purview of the defense due to its narrow interpretation. For instance, lighter forms of sexual contact such as touching or non-penetrative sexual acts may not meet the threshold of outrageousness under the current standard such as Cuervelo but could potentially be addressed under a more expansive interpretation.

The greater danger lies in the potential self-perpetuation of this judicial attitude given the United States' case law system. When one court determines that a case involving sexual contact in a prostitution sting does not qualify as conscience-shocking, subsequent court rulings on similar cases may reference these precedents, rejecting the outrageous defense for the same reasons. Judges may be disincentivized to overturn precedents, given the burden to prove why their revised interpretation is superior to past applications of the same test. Consequently, this contributes to a growing insensitivity within the judicial system, perpetuating resistance to the reversal of prostitution convictions based on the outrageous defense.

Permitting the continual development of such an “unshockable conscience,” both in the legal and social sense, would inadvertently endorse police intrusion into private interests, thus counteracting constitutional intent. It represents a form of desensitization where repeated exposure to gender violence dulls people’s capacity to feel offended or irritated. The unreasonably high threshold set to establish police outrageousness in prostitution stings encourages tolerance for any sexual offense below this threshold, transforming them into activities devoid of consequences—sex with no cost.

One potential strategy for addressing the tension between the broad constitutional definition and the need for precise defenses in court is to develop secondary tests tailored to individual circumstances. Instead of striving to create a sweeping legal test that encompasses all instances of outrageous government conduct, it may be more beneficial to redirect our attention towards delineating what constitutes police outrageousness in particular situations. This approach should be similar, or even exceeds, the specificity of tests like the Cuervelo test. For example, we can imagine this new test to establish precise criteria within the defined context of prostitution stings, specifically evaluating the use of sexual contact during such operations. By doing so, it would furnish courts with highly practical and unambiguous guidelines for rendering judgments in this specific scenario. At the same time, it also avoids imposing a universal test that jeopardizes the abstract nature of the due process clause or limits its adaptation in different legal contexts.

C). While government agents frequently put forth the argument of tolerating a certain level of sexual contact to prevent detection, this common justification of police officers should not be readily accepted without examining the exact timing and nature of sexual contact: collecting evidence might qualify as a justification in cases where a prostitute requires that the undercover police officer engage in sexual contact before settling the exchange of sex for money. Yet, in court cases like Flanagan and Tookes, sexual contact occurred after the two parties had already settled the terms of the sex-money exchange: the undercover police chose to continue sexual contact that surpassed a level required for investigation. Under this circumstance, there is substantial reason to doubt whether the sexual contact was intended for conviction purposes or merely for personal gratification of police officers.

Another critical ethical concern often overlooked is whether prostitutes have the right to be informed about the legal enforcement boundaries in sting operations. The premise guiding prostitutes in distinguishing real clients from undercover police officers is their belief that law enforcement officers are prohibited from engaging in sexual contact.[49] Based on this assumption, prostitutes establish a test where consent and sexual contact occur in an interconnected manner: when a man agrees to engage in sexual contact, he demonstrates to the prostitute that he is a credible client, consequently gaining her consent for the interaction.

However, when undercover police officers respond to a prostitute’s request without divulging that sexual contact and deception are permissible in government investigations, the situation becomes ethically problematic. In a sting operation, if the undercover officer utilizes deception to circumvent the prostitute's consent test and proceeds with sexual contact in the absence of an informed consent, these interactions should be more properly be called “non-consensual sexual harassment” or, in more extreme cases, rape. This issue was evident in interviews with individuals affected by prostitution stings. For instance, a sex worker named Rachel articulated her feelings, stating, "I felt violated by the end of the experience; I felt profoundly deceived."[50] Even if the undercover officer terminates the interaction immediately, a non-consensual sexual contact has already occurred and can cause long-term trauma for the prostitutes involved.

The promised economic payment also seldom occurs at the conclusion of prostitution stings. Thus, the law enforcement officers not only harm the prostitute's right to consent but also their economic interests. The prostitute may not have engaged in the sexual activity initially if she had been aware that no payment would be forthcoming. Again, the deceptive tactic of the undercover agents robs prostitutes of their right to information during sexual encounters, constituting a form of exploitation more egregious than prostitution itself. Engaging in the exchange of sex for money is one matter; however, when prostitutes are deceived into providing their services without compensation, instead facing conviction, they are "double-screwed" by a system that first compels them to sell their bodies and then uses institutional rape to convict them of a crime.[51] 

The presence of outrageous sexual misconduct within the executive branch may derive from prioritizing the interests of police officers over the rights of prostitutes. There is a continued perception of the latter group as criminals, rather than recognizing them as potential victims within the sex industry that are susceptible to police violence. When considering the balance between "government intrusion versus individual autonomy," particularly regarding sexual contact in prostitution stings where "the crime is generally only a misdemeanor, yet the investigation involves serious intrusions into intimate personal matters," there is a need to adjust our priorities to protect individuals’ rights from the government’s abuse of power.[52] The persistent issue is that even police officers themselves are often uncertain about the boundaries of their conduct in prostitution stings.[53] Therefore, they lack the knowledge and incentive to communicate these boundaries to the prostitutes they attempt to arrest. This has granted law enforcement excessive latitude to legitimize any action in the pursuit of gathering evidence, exacerbating the power disparity between the government and prostitutes.

In conclusion, this section offers several reasons to uphold the outrageous government conduct defense in cases involving sexual contact in prostitution stings. First, compared to the entrapment defense, the outrageous government conduct defense boasts a more substantial constitutional foundation and greater capacity to protect defendants' privacy in court. Second, recognizing the validity of the outrageous defense is essential for ensuring adherence to the constitution's principles of due process and preventing the normalization of police intrusion. Lastly, the outrageous defense helps recognize police abuse in prostitution stings as a form of gendered and institutional violence. Advocating for this defense is crucial for protecting individual rights and addressing systemic issues within the policing of the sex industry.

Future Directions of Prostitution Policing

So far, our discussion has centered on the reasons for preserving the availability of the outrageous defense. Yet, in this final section, I will offer several alternative directions for the evolution of prostitution policing and legislation, ordered by feasibility and time frame. These directions include: 1) Advocating for a broader acceptance of the defense of police outrageous conduct. 2) Redirecting focus towards targeting "Johns" in sting operations. 3) Implementing a prohibition on sexual contact within sting operations or within prostitution stings entirely. These proposed alternatives represent progressive steps towards not only enhancing the protection of individual rights, but also fostering broader systemic changes in the approach to addressing prostitution within our legal system.

To begin, we should ensure a bottom-line protection for defendants who have experienced sexual contact during sting operations by enhancing the viability of the outrageous defense in courts. This entails moving away from solely emphasizing entrapment defenses, which often concentrate on the predisposition of suspects towards criminal behavior, to a focus on potential abuses of power by law enforcement officers. By prioritizing procedural justice in prostitution investigations, cases like Burkland and Chon provide a promising foundation for the acknowledgment of this defense within the context of prostitution stings, establishing precedents upon which future cases can build. Notably, the success of Com. v. Sun Cha Chon underscores the importance of employing a well-defined test, such as the Cuervelo test, to structure and rationalize the evaluation of the defense's validity. Admittedly, the Cuervelo test would benefit from some refinement, particularly in clarifying whether any form of sexual contact less than intercourse constitutes a sexual relationship and in tailoring its application to the specific nuances of prostitution stings instead of a general investigation context. However, it sets an example based on which courts can formulate clearer guidelines or alternative criteria for handling incidents involving sexual contact in such operations. Donald Dripps, a legal scholar specializing in due process law, argues the necessity of categorizing investigative methods and practices to mitigate the discretion afforded to law enforcement officers, advocating for stronger justifications for increasingly intrusive police actions.[54] As a standardized test gains prevalence and undergoes refinement through subsequent court cases, it has the potential to evolve into a tailored legal test designed to safeguard the rights of prostitutes against police misconduct.

Additionally, there should be a redirection of sting operations from targeting sex sellers to focusing on sex buyers, commonly referred to as "Johns."[55] There is a profound discrepancy in the frequency of sexual contact between different groups involved in prostitution stings. For instance, sexual encounters are extremely rare in sting operations utilizing female decoys to apprehend male customers compared to the gender-reversed setup. It is almost inconceivable to imagine a female undercover officer engaging in sexual activity just to arrest a "John." However, male officers more frequently exploit their position of power in such operations, engaging in sexual contact to fulfill their own sexual desires.[56] Also, sting operations targeting Johns are much less likely to disproportionately affect the socially more vulnerable prostitutes, but instead target sex buyers. While concerns may arise regarding the safety of female officers in such operations, the advent of online solicitation platforms has facilitated more convenient stings, and with other police officers typically positioned nearby during sting operations, the potential risks can be mitigated. In fact, several police departments have already begun transitioning towards prioritizing the arresting of Johns. For instance, in 2011, the Cook County Sheriff’s office initiated a "National Day of Johns Arrests," organizing several weeks of sting operations specifically targeting Johns. Through initiatives like this aimed at reshaping the norms of prostitution policing, Cook County has successfully narrowed the gap between the number of arrests of sex buyers and sellers. For instance, whereas in 2008 there were approximately 2,000 arrests of prostitutes compared to 900 Johns, by August 2015, the ratio had shifted to approximately 240 prostitutes to 258 Johns.[57]

There is also a compelling argument for implementing a complete ban on sexual contact within prostitution sting operations, or even abolishing such stings altogether. Recognizing the inherent danger posed by granting law enforcement officers discretion regarding sexual activities during investigations, certain legislators, such as Democrat politician Matt Claman, have endorsed initiatives like House Bill 112. This bill seeks to expand the scope of sexual assault legislation by prohibiting law enforcement officers from engaging in sexual activity with individuals under investigation. In a similar vein, legislators in Hawaii passed legal amendments in 2014 aimed at preventing officers from engaging in sexual conduct during investigations, thus ensuring protection from sexual violence at the legislative level.[58] 

Some legal scholars advocate for the abolition of prostitution sting operations altogether due to their deceptive nature and the complexities associated with convicting prostitution, which often incentivize sexual contact and infringe upon the bodily autonomy of suspects.[59] The possibility of sexual contact in prostitution stings fundamentally distinguishes them from other forms of sting operations, such as drug stings. The court case People v. Isaacson emphasized this distinction, highlighting the intimate nature of transactions in prostitution compared to that of drug transactions. While drug-money exchanges resemble typical transactions apart from the illicit substance involved, the physical intimacy between the buyer and the seller in prostitution transactions sets them apart.[60] Similarly, prostitution stings are characterized by their invasive nature, as undercover officers utilize sexual interactions with suspects as evidence for their prosecution.[61] 

To illustrate this disparity further, consider a scenario proposed by Mary Felder: in a drug sting operation, the undercover agent has no incentive to consume the confiscated drugs themselves. Doing so would constitute the exact crime they are seeking to combat, and they should face prosecution. While there is a clear opposition to officers engaging in drug use during drug stings, the same level of scrutiny does not seem to apply to sexual interactions in prostitution stings. A common excuse is that sexual interaction needs to occur in order to substantiate evidence of an exchange involving money for sex. Yet, engaging in sexual interactions during a prostitution sting is akin to a law enforcement officer using drugs during a drug sting. In both cases, the officer will be actively participating in the very crime they are supposed to be preventing. This raises serious ethical concerns, especially if the officers involved face no punishment for their actions.[62]

Proposals to either legislate against prostitution stings or abolish them entirely represent a more foundational approach to addressing sexual misconduct within law enforcement operations. While the acceptance of the outrageous defenses provides a last resort after harm has occurred, these measures aim to prevent sexual contact at its source and reshape the norms in prostitution policing.

Advancing Towards a Decriminalization Framework

In the United States, the criminalization of prostitution has roots deeply embedded in sexism and racism. During the Progressive Era, the regulations on prostitution were aimed at regulating women's sexuality. Central to these regulations was a pervasive concern over the perceived sexual promiscuity and moral corruption of women in society.[63] Specifically, the 1910s witnessed a widespread fear of "white slavery," portraying white women as vulnerable victims of sex trafficking. This fear prompted the enactment of the Mann Act, criminalizing the transportation of "any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose."[64] Concurrently, racial biases fueled perceptions of women of color as inherently more promiscuous. One example is the "Jezebel" stereotype, which portrays black women as sexually licentious and insatiable beings dominated by their libido.[65] Biases like this positioned the criminalization of prostitution as a mechanism to protect white women and uphold the purity of white culture from potential contamination by racial minorities.

Currently, the criminalization of prostitution continues to incentivize mass arrests of prostitutes, with sting operations disproportionately targeting the most "politically vulnerable,"[66] namely impoverished gender and racial minorities. Although anti-prostitution laws claim to equally penalize both prostitutes and clients of all genders, in reality, female sex workers bear the brunt of enforcement. In People v. Superior Court (1977), two female prostitutes from California appealed on the basis of sexual discrimination in prostitution policing. Data showed that in 1973 and 1974, "1,160 women were arrested by means of male decoys and 57 men were arrested by means of female decoys."[67] The court recognized this blatant gender disparity, acknowledging the existence of a "double standard of sexual morality"[68] that unfairly penalized women who engage in sex work while overlooking the culpability of their male clients. Likewise, in 2017, the Pennsylvania police department made 1,143 arrests for prostitution, with over 60% of these targeting individuals selling sex.[69] This pattern of selective enforcement perpetuates systemic inequalities and exacerbates the vulnerability of marginalized groups in society.

Within the secret and isolating environment of prostitution stings, male undercover agents wield significant physical and legal authority over the much more vulnerable prostitutes. This power dynamic enables sexual exploitation with minimal repercussions, leading to a high rate of police violence and abuse. A study conducted in San Francisco revealed that over 14% of prostitutes were threatened with arrest unless they engaged in sexual acts with police officers, with 2% still facing arrest even after compliance. As sex worker activist Almodovar wryly remarked, "they get to screw us for free, and cops love freebies. Think how much they love donuts."[70] Furthermore, according to a report on the Baltimore Police Department, women of color are most commonly coerced into sexual favors with police officers and it is extremely hard for them to fight back given the sharp differences in political and physical power.[71] Next, what awaits the prostitutes is typically incarceration. According to a 2020 study conducted in Baltimore, Maryland, over 70 percent of the prostitutes sampled had experienced incarceration at least once, with an average of 15 imprisonments over their lifetimes.[72] This cycle of mass incarceration fails to dissuade them from the industry. Rather, it ensnares them within the system due to their criminal records, hindering their ability to secure alternative employment, housing, or financial services such as renting an apartment or obtaining a credit card.

Living under the constant specter of discrimination, sexual violence perpetrated by law enforcement, and the looming threat of imprisonment, prostitutes harbor profound mistrust and animosity towards police officers. Consequently, when faced with instances of client violence or other safety threats, they are reluctant to seek help from police officers. They lack confidence that their cases will be taken seriously and fear that involvement with the authorities could only make the situation worse: reporting can lead to being arrested for selling sex in the first place or even subject them to further sexual harassment by police officers.[73] Without a shift in the legal status of prostitution in the United States, it is difficult to imagine substantial changes to the adversarial dynamic between prostitutes and the police.

One potential alternative is a legalization model wherein the buying and selling of sex are both permitted under certain regulations. However, the licensing requirements, mandatory registration, and regular health screenings serve to increase the frequency of interactions between prostitutes and authorities, constantly subjecting them to government surveillance.[74] These regulations also introduce a new tension between prostitutes and brothels: as policies restrict sex work to licensed brothels, brothels gain increased leverage in the employment relationship, while marginalized individuals unable to afford health exams or registration processes are compelled to operate independently under illegal status. For independent prostitutes working outside the bounds of legalization, their precarious living conditions and the fear of arrest remain.

Currently, the decriminalization model is the most widely endorsed legal framework for regulating prostitution by sex worker associations and human rights organizations.[75] 

New Zealand pioneered this approach in 2003 by removing criminal penalties for both the buying and selling of sex without imposing additional legal burdens on the prostitutes.[76] This fosters a sense of trust and safety, encouraging prostitutes to report incidents of violence to the police without fear of repercussion. Therefore, one of decriminalization’s primary appeals lies in its potential to transform the relationship between police officers and prostitutes into a more supportive dynamic.

A study examining the impact of decriminalization in New Zealand revealed that street prostitutes, who are particularly vulnerable to violence and arrest in a criminalization system, expressed heightened security in approaching law enforcement under decriminalization. Shania, a prostitute interviewed, conveyed this newfound confidence: "I feel confident enough now to go to them if need be, if anything, you know went down whereas before you wouldn’t. It’s closed a bridge there… sort of made each other approachable."[77] This shift is largely attributed to prostitutes no longer being viewed as criminals under the decriminalization model, resulting in the dissolution of much of the tension between law enforcement and those engaged in prostitution. Instead, prostitutes are recognized as common victims of sexual violence deserving of protection from police authority, rather than being exploited by it.

In June 2023, Maine passed a bill to decriminalize prostitution within the state. However, this move aligns more closely with a partial decriminalization model, akin to approaches seen in Nordic countries. In this model, selling sex is decriminalized, while purchasing sex remains illegal. This partial decriminalization approach has its own drawbacks. Concerned about the risk of arrest, clients may hesitate to provide personal information or engage in transactions in public spaces, opting instead to conceal their identities by arranging meetings with prostitutes in private settings or through intermediaries like brothels. Moreover, there's a heightened health risk as police may confiscate condoms as conviction evidence for buying sex, potentially resulting in clients requesting unprotected sex, thereby increasing the risks of STDs and HIV. Furthermore, despite the decriminalization of selling sex, the fear of losing clients or facing retaliation may still deter prostitutes from reporting instances of violence to the authorities, perpetuating a cycle of vulnerability.[78]

Despite these challenges, Maine's move represents a meaningful step away from a full criminalization model toward one of full decriminalization, a transition that has the potential to better protect the rights of prostitutes and eliminate the threat of arrest.

Conclusion

In this paper, I investigated the evolution of the outrageous defense and its application in the context of prostitution stings, examining associated controversies and proposing future directions for prostitution regulations. My aim was to illuminate the possible legal protections available to prostitutes, be it through the acceptance of the outrageous government conduct defense as a final safeguard, the transition away from prostitution stings to prevent instances of sexual contact, or the adoption of a decriminalization model that might foster a more supportive and trustworthy relationship between law enforcement and prostitutes.

Ultimately, these approaches advocate for a prostitute-centric approach to policy making. It is imperative for policymakers to both acknowledge the marginalized and vulnerable status of prostitutes and to listen to their voices regarding the significant challenges and violence they encounter in their everyday lives. Like all citizens, prostitutes deserve basic rights to safety, privacy, and dignity––rights that are often denied within the current criminalization model characterized by prevalent sting operations and sexual violence in law enforcement.

Future studies in this field could delve deeper into the issue of intersectionality in prostitution stings and other instances of police violence against prostitutes. While this project touched briefly on the racial and gender complexities in these dynamics, there is much more to explore. Marginalized groups such as racial minorities, transgender individuals, or immigrant prostitutes often experience higher levels of mistreatment within law enforcement and are less likely to report them due to a fear of their illegal status and additional violence.[79] It would be meaningful to delve into the specific challenges they face compared to the experiences of the majority, such as cisfemale prostitutes. Additionally, further studies can discuss whether the aforementioned policy directions can be further refined to better address the unique needs of these groups.

Katherine Zhao

Katherine Zhao graduated from University of Chicago in 2024. She studied Law, Letters, and Society

    [1] Dylan Segelbaum and Sam Ruland, "‘At What Point Do They Stop?’ Tactics in Prostitution Stings Raise Questions in Pa..," York Daily Record, May 14, 2019, https://www.ydr.com/story/news/watchdog/2019/05/06/investigation-undercover-prostitution-sting-cases-pennsylvania-police/3344293002/.

    [2]  In this paper, I have chosen to use the term "prostitutes" rather than "sex workers," drawing from scholarly discussions on the nuanced connotations of these terms. Many advise against employing "sex work" as it can obscure the exploitative nature inherent in the sex trade, potentially presenting it as a consented activity akin to other forms of labor. Additionally, it may inadvertently normalize the commodification of sex and diminish the accountability of those purchasing sexual services. By utilizing the term "prostitution," I aim to highlight it as a systemic form of suppression and violence disproportionately affecting society's most vulnerable groups; Scott Gutierrez, "How Far Is Too Far for Vice Cops Patrolling Seattle Strip Clubs?," Seattlepi, May 10, 2007, https://www.seattlepi.com/seattlenews/article/how-far-is-too-far-for-vi….

    [3] Kat Banyard, "The Dangers of Rebranding Prostitution as ‘Sex Work,’" The Guardian, June 7, 2016, https://www.theguardian.com/lifeandstyle/2016/jun/06/prostitution-sex-work-pimp-state-kat-banyard-decriminalisation; Pamela Paul, "What It Means to Call Prostitution ‘Sex Work,’" The New York Times, August 17, 2023, https://www.nytimes.com/2023/08/17/opinion/prostitution-sex-work.html; Flanigan Jessica, "Why ‘Sex Work’ Cannot Be Understood as Just Another Form of ‘Work,’" Debating Sex Work, November 21, 2019, 75–127, https://doi.org/10.1093/oso/9780190659882.003.0003; Ruchira Gupta, "The Politics of Language: Why Sex Is Not Work," ANTYAJAA: Indian Journal of Women and Social Change 2, no. 2 (December 2017): 222–31, https://doi.org/10.1177/2455632717735731.

    [4] Jon Collins, "MPLS. Police’s Prostitution Stings Criticized," MPR News, July 14, 2019. https://www.mprnews.org/story/2015/08/20/prostitution-cop.

    [5] Sirin Kale, "Police Are Allegedly Sleeping with Sex Workers before Arresting Them," VICE, May 3, 2017, https://www.vice.com/en/article/59mbkx/police-are-allegedly-sleeping-with-sex-workers-before-arresting-them.

    [6] There are a few exceptions to the criminalization of prostitution in rural counties in Nevada: According to Nevada Revised Statutes 201.354, prostitution is legalized within licensed brothels in counties with populations of fewer than 400,000 individuals. However, the licensed brothels and the sex workers need to adhere to specific regulations, such as regular STD and HIV testing, an age limit of 18, and the use of condoms, etc.

    [7] New York Penal Law §230.00

    [8] Phillip Walters, "Would a Cop Do This: Ending the Practice of Sexual Sampling in Prostitution Stings," Law and Inequality: A Journal of Theory and Practice 29, no. 2 (Summer 2011): 452-453.

    [9] Paula Del Valle Torres, "Sexual Contact Between A Suspect and Police Officers: How Far Should Police Go to Prove Prostitution?," Social Policy 28 (2020), 473.

     

    [10] U.S. CONST. AMEND. V.

    [11] United States v. Russell, 411 U.S. 423

    [12] Sorrells v. United States, 287 U.S. 435, 53 S. Ct. 210, 77 L. Ed. 413 (1932).

    [13] Edmund P Bergan Jr, "Entrapment in the Federal Courts-Subjective Test Reaffirmed Against Lower Court Departures," Crim. Just. Sys. Rev. 2 (1974): 631.

    [14] Zelinger, 159.

    [15] See Sherman v. United States, 356 U.S. 369, 78 S. Ct. 819, 2 L. Ed. 2d 848 (1958); United States v. Bueno, 447 F.2d 903 (5th Cir. 1971).

    [16] Rochin v. California, 342 U.S. 165, 72 S. Ct. 205, 96 L. Ed. 183 (1952).

    [17] United States v. Russell, 411 U.S. 423, 93 S. Ct. 1637, 36 L. Ed. 2d 366 (1973).

    [18] US v. Santana, 6 F.3d 1 (1st Cir. 1993).

    [19] Hampton v. United States, 425 U.S. 484, 96 S. Ct. 1646, 48 L. Ed. 2d 113 (1976).

    [20] Hampton v. United States, 425 U.S. 484, 96 S. Ct. 1646, 48 L. Ed. 2d 113 (1976).

    [21] Hampton v. United States, 425 U.S. 484, 96 S. Ct. 1646, 48 L. Ed. 2d 113 (1976).

     

    [22] Stephen A. Miller, "Case for Preserving the Outrageous Government Conduct Defense," Northwestern University Law Review 91, no. 1 (1996-1997): 316-317

    [23] US v. Boyd, 55 F.3d 239 (7th Cir. 1995).

     

    [24] State v. Morris, 272 N.W.2d 35 (Minn. 1978); State v. Crist, 281 N.W.2d 657 (Minn. 1979).

    [25] Municipality of Anchorage v. Flanagan, 649 P.2d 957 (Alaska Ct. App. 1982).

    [26] State v. Tookes, 699 P.2d 983, 67 Haw. 608 (1985).

    [27] US v. Cuervelo, 949 F.2d 559 (2d Cir. 1991).

    [28] US v. Cuervelo

    [29] Com. v. Sun Cha Chon, 983 A.2d 784 (Pa. Super. Ct. 2009).

    [30] US v. Cuervelo

    [31] US v. Dyess, 293 F. Supp. 2d 675 (S.D.W. Va. 2003); US v. Therrien, 847 F.3d 9 (1st Cir. 2017); United States v. Carson, No. 21-3518 (6th Cir. 2022); United States v. Nolan-Cooper, 155 F.3d 221 (3d Cir. 1998)

    [32] US v. Therrien, 847 F.3d 9 (1st Cir. 2017).

    [33] United States v. Carson, No. 21-3518 (6th Cir. 2022)

    [34] State v. Burkland, 775 N.W.2d 372 (Mich. Ct. App. 2009).

     

    [35] Alexander v. DeAngelo, 329 F.3d 912 (7th Cir. 2003).

    [36] Donald A. Dripps, "At the Borders of the Fourth Amendment: Why a Real Due Process Test Should Replace the Outrageous Government Conduct Defense." U. Ill. L. Rev. (1993): 276.

    [37] Miller, 326.

    [38] U.S. Department of Justice, Criminal Resource Manual §648.

    [39] Matthew v. Honeywell, "What Is Outrageous Government Conduct-The Washington State Supreme Court Knows It When It Sees It: State v. Lively." Seattle UL Rev. 21 (1997): 696.

    [40] Stephen A. Meister, "When Nothing is Shocking: The Ninth Circuit Degrades the Outrageous Government Conduct Defense." Loy. LAL Rev. 22 (1988): 865.

    [41] Dripps, 283.

    [42] Alison L. Grittner, and Christine A. Walsh. "The role of social stigma in the lives of female-identified sex workers: A scoping review." Sexuality & Culture 24, no. 5 (2020): 1653-1682.

    [43] Walters, 453.

    [44] Paul Marcus, "The Development of Entrapment Law." Wayne L. Rev. 33 (1986): 5.

    [45] United States v. Russell, 411 U.S. 423

    [46] United States v. Russell, 411 U.S. 423

    [47] Ben A. Hardy, "The Traps of Entrapment." Am. J. Crim. L. 3 (1974): 167; Eve A. Zelinger, "The Outrageous Government Conduct Defense: An Interpretive Argument for Its Application by SCOTUS." Hastings Const. LQ 46 (2018): 155.

    [48] Palko v. Connecticut, 302 U.S. 319, 328 (1937).

    [49] Walters, 453.

    [50] Kale.

    [51] Gary T. Marx, "Under‐the‐covers Undercover Investigations: Some Reflections on the State’s Use of Sex and Deception in Law Enforcement," Criminal Justice Ethics 11, no. 1 (1992): 13–24, https://doi.org/10.1080/0731129x.1992.9991907.

    [52] Stieler, 464.

    [53] "Police departments that made these arrests seldom had written policies about how to conduct prostitution investigations — or, if they existed, the guidelines did not outline what conduct is prohibited." See Segelbaum

    [54] Dripps, 283.

    [55] Walters, 473.

    [56] Mary Felder. "Outrageous Government (Mis)Conduct: Due Process as a Defense in Paid-Sex Sting Operations." University of Pennsylvania Law Review: 563.

    [57] Charlotte Alter, "Sex Buyers: Why Cops across the U.S. Target Men Who Buy Prostitutes," Time, August 18, 2015, https://time.com/sex-buyers-why-cops-across-the-u-s-target-men-who-buy-prostitutes/#:~:text=It’s%20rare%20to%20see%20a,caught%20trying%20to%20buy%20sex.

     

    [58] Kale.

    [59] Torres, 473.

    [60] People v. Isaacson, 44 N.Y.2d 511, 378 N.E.2d 78, 406 N.Y.S.2d 714 (1978).

    [61] Torres, 482.

    [62] Felder, 560

    [63] John D'emilio and Estelle B. Freedman. Intimate matters: A history of sexuality in America. University of Chicago Press, 1997: 87.

    [64] Munshi, Sherally. "White Slavery and the Crisis of Will in the Age of Contract." Yale JL & Feminism 30 (2018): 327.

    [65] "Looking at One's Self through the Eyes of Others": Representations of the Progressive Era Middle Class in W. E. B. Du Bois's The Star of Ethiopia

    [66] Dripps, 282.

    [67] People v. Superior Court (Hartway), 562 P.2d 1315, 19 Cal. 3d 338, 138 Cal. Rptr. 66 (1977).

    [68] People v. Superior Court (Hartway).

    [69] Segelbaum.

    [70]Kale.

    [71] Mary Felder, 563

    [72] Anne E. Fehrenbacher, Ju Nyeong Park, Katherine HA Footer, Bradley E. Silberzahn, Sean T. Allen, and Susan G. Sherman. "Exposure to police and client violence among incarcerated female sex workers in Baltimore City, Maryland." American journal of public health 110, no. S1 (2020): S152-S159: 1.

    [73] Struyf, Pia. "To report or not to report? A systematic review of sex workers’ willingness to report violence and victimization to police." Trauma, Violence, & Abuse 24, no. 5 (2023): 3065-3077.

    [74] S. Sakha., E. Greytak, and M. Haynes. "Is sex work decriminalization the answer? What the research tells us." (2020).

    [75] DSW, "Organizations That Support the Decriminalization of Prostitution," Decriminalize Sex Work, July 21, 2023, https://decriminalizesex.work/why-decriminalization/organizations-endorsing-decriminalization/.

    [76] Struyf, 1.

    [77] Lynzi Armstrong. "From law enforcement to protection? Interactions between sex workers and police in a decriminalized street-based sex industry." British Journal of Criminology 57, no. 3 (2017): 570-588.

    [78] Ulf Stridbeck, O. Kristiansen, B. Schei, and J. Kölher-Olsen. "Purchasing sexual services in Sweden and the Netherlands; Legal Regulations and Experiences." Netherlands: Ministry of the Justice and the Police (2004).

    [79] Lucy Platt et al., "The Effect of Systemic Racism and Homophobia on Police Enforcement and Sexual and Emotional Violence among Sex Workers in East London: Findings from a Cohort Study," Journal of Urban Health 99, no. 6 (October 12, 2022): 1127, https://doi.org/10.1007/s11524-022-00673-z; Rachele Girardi, "‘It’s Easy to Mistrust Police When They Keep on Killing Us’: A Queer Exploration of Police Violence and LGBTQ+ Victimization," Journal of Gender Studies 31, no. 7 (September 14, 2021): 855, https://doi.org/10.1080/09589236.2021.1979481; Bronwyn McBride et al., "Underreporting of violence to police among women sex workers in Canada: amplified inequities for im/migrant and in-call workers prior to and following end-demand legislation." Health and human rights 22, no. 2 (2020): 257.

     Alexander v. DeAngelo, 329 F.3d 912 (7th Cir. 2003).

    Armstrong, Lynzi. "From law enforcement to protection? Interactions between sex workers and police in a decriminalized street-based sex industry." British Journal of Criminology 57, no. 3 (2017): 570-588.

    Banyard, Kat. "The Dangers of Rebranding Prostitution as ‘Sex Work.’" The Guardian, June 7, 2016. https://www.theguardian.com/lifeandstyle/2016/jun/06/prostitution-sex-w…;

    Bergan Jr, Edmund P. "Entrapment in the Federal Courts-Subjective Test Reaffirmed Against Lower Court Departures." Crim. Just. Sys. Rev. 2 (1974): 631.

    Colb, Sherry F. "Should the Law Permit Sexual Contact between Police and Suspects?" Verdict Comments, September 12, 2017. https://verdict.justia.com/2017/09/13/law-permit-sexual-contact-police-….

    Collins, Jon. "MPLS. Police’s Prostitution Stings Criticized." MPR News, July 14, 2019. https://www.mprnews.org/story/2015/08/20/prostitution-cop.

    Com. v. Sun Cha Chon, 983 A.2d 784 (Pa. Super. Ct. 2009). 

    Dripps, Donald A. "At the Borders of the Fourth Amendment: Why a Real Due Process Test Should Replace the Outrageous Government Conduct Defense." U. Ill. L. Rev. (1993): 261.

    D'emilio, John, and Estelle B. Freedman. Intimate matters: A history of sexuality in America. University of Chicago Press, 1997.

    DSW. "Organizations That Support the Decriminalization of Prostitution." Decriminalize Sex Work, July 21, 2023. https://decriminalizesex.work/why-decriminalization/organizations-endor…;

    Fehrenbacher, Anne E., Ju Nyeong Park, Katherine HA Footer, Bradley E. Silberzahn, Sean T. Allen, and Susan G. Sherman. "Exposure to police and client violence among incarcerated female sex workers in Baltimore City, Maryland." American journal of public health 110, no. S1 (2020): S152-S159.

    Felder, Mary. "Outrageous Government (Mis)Conduct: Due Process as a Defense in Paid-Sex Sting Operations." University of Pennsylvania Law Review, n.d.

    Girardi, Rachele. "‘It’s Easy to Mistrust Police When They Keep on Killing Us’: A Queer Exploration of Police Violence and LGBTQ+ Victimization." Journal of Gender Studies 31, no. 7 (September 14, 2021): 852–62. https://doi.org/10.1080/09589236.2021.1979481. 

    Grittner, Alison L., and Christine A. Walsh. "The role of social stigma in the lives of female-identified sex workers: A scoping review." Sexuality & Culture 24, no. 5 (2020): 1653-1682.

    Gupta, Ruchira. "The Politics of Language: Why Sex Is Not Work." ANTYAJAA: Indian Journal of Women and Social Change 2, no. 2 (December 2017): 222–31. https://doi.org/10.1177/2455632717735731. 

    Gutierrez, Scott. "How Far Is Too Far for Vice Cops Patrolling Seattle Strip Clubs?" Seattlepi, May 10, 2007. https://www.seattlepi.com/seattlenews/article/how-far-is-too-far-for-vice-cops-patrolling-1237076.php. 

    Hardy, Ben A. "The Traps of Entrapment." Am. J. Crim. L. 3 (1974): 165.

    Hewett, Rebecca. "‘looking at One’s Self through the Eyes of Others’: Representations of the Progressive Era Middle Class in W. E. B. Du Bois’s the Star of Ethiopia." Theatre History Studies 30, no. 1 (2010): 187–201. https://doi.org/10.1353/ths.2010.0009.

    Honeywell, Matthew V. "What Is Outrageous Government Conduct-The Washington State Supreme Court Knows It When It Sees It: State v. Lively." Seattle UL Rev. 21 (1997): 689. 

    Jessica, Flanigan. "Why ‘Sex Work’ Cannot Be Understood as Just Another Form of ‘Work.’" Debating Sex Work, November 21, 2019, 75–127. https://doi.org/10.1093/oso/9780190659882.003.0003. 

    Kale, Sirin. "Police Are Allegedly Sleeping with Sex Workers before Arresting Them." VICE, May 3, 2017. https://www.vice.com/en/article/59mbkx/police-are-allegedly-sleeping-with-sex-workers-before-arresting-them.

    Marcus, Paul. "The Development of Entrapment Law." Wayne L. Rev. 33 (1986): 5.

    Marx, Gary T. "Under‐the‐covers undercover investigations: Some reflections on the state's use of sex and deception in law enforcement." Criminal Justice Ethics 11, no. 1 (1992): 13-24. 

    McBride, Bronwyn, Kate Shannon, Brittany Bingham, Melissa Braschel, Steffanie Strathdee, and Shira M. Goldenberg. "Underreporting of violence to police among women sex workers in Canada: amplified inequities for im/migrant and in-call workers prior to and following end-demand legislation." Health and human rights 22, no. 2 (2020): 257.

    Meister, Stephen A. "When Nothing is Shocking: The Ninth Circuit Degrades the Outrageous Government Conduct Defense." Loy. LAL Rev. 22 (1988): 843.

    Miller, Stephen A. "Case for Preserving the Outrageous Government Conduct Defense." Nw. UL Rev. 91 (1996): 305.

    Municipality of Anchorage v. Flanagan, 649 P.2d 957 (Alaska Ct. App. 1982).

    Munshi, Sherally. "White Slavery and the Crisis of Will in the Age of Contract." Yale JL & Feminism 30 (2018): 327.

    New York Penal Law §230.00

    Palko v. Connecticut, 302 U.S. 319, 328 (1937).

    Paul, Pamela. "What It Means to Call Prostitution ‘Sex Work.’" The New York Times, August 17, 2023. https://www.nytimes.com/2023/08/17/opinion/prostitution-sex-work.html.&…;

    People v. Isaacson, 44 N.Y.2d 511, 378 N.E.2d 78, 406 N.Y.S.2d 714 (1978).

    People v. Superior Court (Hartway), 562 P.2d 1315, 19 Cal. 3d 338, 138 Cal. Rptr. 66 (1977).

    Platt, Lucy, Raven Bowen, Pippa Grenfell, Rachel Stuart, M. D. Sarker, Kathleen Hill, Josephine Walker, et al. "The Effect of Systemic Racism and Homophobia on Police Enforcement and Sexual and Emotional Violence among Sex Workers in East London: Findings from a Cohort Study." Journal of Urban Health 99, no. 6 (October 12, 2022): 1127–40. https://doi.org/10.1007/s11524-022-00673-z. 

    Rochin v. California, 342 U.S. 165, 72 S. Ct. 205, 96 L. Ed. 183 (1952).

    Sakha, S., E. Greytak, and M. Haynes. "Is sex work decriminalization the answer? What the research tells us." (2020).

    Segelbaum, Dylan and Ruland, Sam. "‘At What Point Do They Stop?’ Tactics in Prostitution Stings Raise Questions in Pa.." York Daily Record, May 14, 2019. https://www.ydr.com/story/news/watchdog/2019/05/06/investigation-underc….

    Sherman v. United States, 356 U.S. 369, 78 S. Ct. 819, 2 L. Ed. 2d 848 (1958)

    State v. Burkland, 775 N.W.2d 372 (Mich. Ct. App. 2009).

    State v. Crist, 281 N.W.2d 657 (Minn. 1979).

    State v. Morris, 272 N.W.2d 35 (Minn. 1978).

    State v. Tookes, 699 P.2d 983, 67 Haw. 608 (1985).

    Stridbeck, Ulf, O. Kristiansen, B. Schei, and J. Kölher-Olsen. "Purchasing sexual services in Sweden and the Netherlands; Legal Regulations and Experiences." Netherlands: Ministry of the Justice and the Police (2004).

    Stieler, Kelley Frances. "The government ménage a trois: Unraveling the government sex partner in undercover prostitution stings." Wash. & Lee J. Civil Rts. & Soc. Just. 15 (2008): 453. 

    Struyf, Pia. "To report or not to report? A systematic review of sex workers’ willingness to report violence and victimization to police." Trauma, Violence, & Abuse 24, no. 5 (2023): 3065-3077.

    Sorrells v. United States, 287 U.S. 435, 53 S. Ct. 210, 77 L. Ed. 413 (1932).

    Torres, Paula Del Valle. "Sexual Contact between a Suspect and Police Officers: How Far Should Police Go to Prove Prostitution?." Am. UJ Gender Soc. Pol'y & L. 28 (2019): 471.

    U.S. CONST. AMEND. V. 

    U.S. Department of Justice, Criminal Resource Manual §648.

    United States v. Bueno, 447 F.2d 903 (5th Cir. 1971).

    United States v. Carson, No. 21-3518 (6th Cir. 2022).

    United States v. Nolan-Cooper, 155 F.3d 221 (3d Cir. 1998).

    United States v. Russell, 411 U.S. 423, 93 S. Ct. 1637, 36 L. Ed. 2d 366 (1973). 

    US v. Boyd, 55 F.3d 239 (7th Cir. 1995).

    US v. Cuervelo, 949 F.2d 559 (2d Cir. 1991).

    US v. Dyess, 293 F. Supp. 2d 675 (S.D.W. Va. 2003).

    US v. Santana, 6 F.3d 1 (1st Cir. 1993).

    US v. Therrien, 847 F.3d 9 (1st Cir. 2017).

    Walters, Phillip. "Would a cop do this: Ending the practice of sexual sampling in prostitution stings." Law & Ineq. 29 (2011): 451.

    Zelinger, Eve A. "The Outrageous Government Conduct Defense: An Interpretive Argument for Its Application by SCOTUS." Hastings Const. LQ 46 (2018): 153.