A legal argument is brewing in Arizona state courts as to what constitutes a brothel because of the Phoenix Goddess Temple trial currently being argued.
Let me back up and give you the background. Back in 2011 police raided a building in midtown Phoenix, Arizona because it was a suspected brothel. A brothel is just another way of saying that it was a house of prostitution. Police said they found advertisements on the website Backpage.com offering sex in exchange for donations.
Prosecutors say the Goddess Temple was a front for prostitution and masqueraded as a church. Basically, prosecutors say there is a litmus test for prostitution: if money was exchanged for sex.
The women who worked in the Goddess Temple claimed the entire organization, including the sex, was for religious purposes. “It was about women being the teachers, the leaders, the guides and men saying ‘I want to be with a woman who is in her power.'” Tracy Elise, Goddess Temple’s ‘Mystic Mother,’ said in an a videotaped interview with Channel 12 news, starting at 1:25 of the video.
Tracy Elise seems to be making two basic defenses: that donations are not a fee arrangement according to contractual law principles, and she has a First Amendment right to practice her religious how she sees fit.
In court this past week, Elise also tried to distinguish the Goddess Temple from a brothel by the amount of revenue. Elise questioned Dennis Hof, the owner of seven brothels and is a “brothel expert” at the trial, if his brothels could be financially viable on a donation system. He quipped that he would have to hire probably a 5,000 more prostitutes at each location to make up for the lost revenue. The suggestion Dennis Hof is making is that a brothel is a business. And like any other business, it fees it charges its customers to pay for operating expenses and to make a profit. If the organization is not concerned with making a profit, then perhaps it is not a brothel.
If money is not the main motive (it is some kind of motive because the Goddess’ solicited donations) does that make it a brothel? And does the religious / First Amendment defense hold any water?
Brothel and Prostitution Law in Arizona
Let’s look at what laws the prosecution is saying Tracy Elise broke related to a brothel / prostitution. According to the Maricopa County Superior Court online docket, Tracy Elise is charged with violating Ariz. R. Stat. § § 13-3208, 13-3209, 13-3214 (to just name the laws related to prostitution). All three of these laws fall under the Prostitution chapter of the Criminal Code for the state of Arizona.
Ariz. Rev. Stat § 13-3208 – is titled “Keeping or Residing in a House of Prostitution” In this article I will just call it Arizona’s Brothel Law.
A. A person who knowingly is an employee at a house of prostitution or prostitution enterprise is guilty of a class 1 misdemeanor.
B. A person who knowingly operates or maintains a house of prostitution or prostitution enterprise is guilty of a class 5 felony.
Ariz. R. Stat. § 13-3209 – Pandering.
A person is guilty of a class 5 felony who knowingly:
1. Places any person in the charge or custody of any other person for purposes of prostitution.
2. Places any person in a house of prostitution with the intent that such person lead a life of prostitution.
3. Compels, induces or encourages any person to reside with that person, or with any other person, for the purpose of prostitution.
4. Compels, induces or encourages any person to lead a life of prostitution.
Ariz. R. Stat. § 13-3214 – Prostitution Classifications.
A. It is unlawful for a person to knowingly engage in prostitution.
Well, it appears the Arizona legislature likes tautological definitions. Instead of providing a definition of what a house of prostitution or a brothel is, it just uses the word being defined in the definition. As we will see next there is a definition statute for the Prostitution chapter of the Criminal Code for the state of Arizona that will provide some clarity. However, on its face, these statutes are annoyingly vague.
Ariz. R. Stat. § 13-3211 – Prostitution Definitions.
2. “House of prostitution” means any building, structure or place that is used for the purpose of prostitution or lewdness or where acts of prostitution occur.
5. “Prostitution” means engaging in or agreeing or offering to engage in sexual conduct under a fee arrangement with any person for money or any other valuable consideration.
Finally, there is some language that actually defines prostitution. The Arizona Legislature again provides no help whatsoever in defining a brothel or house of prostitution. It takes a lot for a law to be unconstitutionally vague, but these tautological definitions are pushing the envelope.
The definition of the act of prostitution is clearer. The law says that there needs to be some kind of contract. There needs to be “bargained for agreement” where going in each side knows they will get something they want. The ‘John’ knows that he will receive sex and the ‘prostitute’ knows she/he will receive something of value (usually money). So we know there needs to be some type of fee arrangement.
What is a Fee Arrangement?
The language in the Ariz. R. Stat. § 13-3211(5) suggests that the act of prostitution requires a contract for sex. For a valid contract to occur three elements need to occur: offer, acceptance, and consideration (as expressly mentioned in the statute). The only part in dispute in the Goddess Temple case is the consideration.
(1) To constitute consideration, a performance or a return promise must be bargained for.
(2) A performance or return promise is bargained for if it is sought by the promisor in exchange for
his promise and is given by the promisee in exchange for that promise.
— Restatement (Second) of Contracts § 71 (1981).
Consideration is the legal concept that each side gets something of value out of the agreement. This principle distinguishes a contract and a promise, in its most basic form. As my Contracts Professor would like to say, “if I offer to take out the garbage for a friend” there really is not anything in it for the party taking out the trash, other than the good feeling of a cleaner area. In a legal sense, one is not getting anything of value for taking out the trash, so there is not any consideration.
But the mere fact that the religious literature is ‘sold’ by itinerant preachers rather than ‘donated’ does not transform evangelism into a commercial enterprise. If it did, then the passing of the collection plate in church would make the church service a commercial project.
— Murdock v. Com. of Pennsylvania, 319 U.S. 105, 111 (1943).
Similarly, Tracy Elise is saying that her announcement on Backpage.com is not the basis of a contract. The Mystic Mother argues it is like passing around the collection plate at church, where a contract cannot occur because it is not clear if Tracy Elise will receive anything for her sexual services at all. Donations by definition are not agreed upon. The donee has control how much, if anything, is given. This is similar to what Dennis Hof, the brothel expert, was saying at the trial. A business has set fees for what it charges — that is part of consideration, which is not how the Goddess Temple operated.
There is one example in Arizona’s history of a fee arrangement for “prostitution” from the case State v. Taylor, 808 P.2d 314 (Ariz. App. Ct. 1990). Where a theater offered an area where behind glass, patrons could watch live dancers fondle their own and others breasts and vaginas. There the defendants worked under a strict fee arrangement with patrons. The audience had to pay a pre-arranged, upfront fee of $20 per woman, and then a fee of four tokens per thirty seconds of performance time thereafter. The Taylor court found this to be a fee agreement.
The problem is that Taylor had pre-defined fees. Going into the agreement both parties knew what they would receive. The patrons of the theater would be able to watch a live sex show. The theater and the dancers would receive payment upfront and in thirty second increments there after. The Goddess Temple was not charging a cover fee at the door, nor were they asking for payment based on any time increments. There is a big difference between what happened in Taylor and how the Goddess Temple conducted their services.
It is very likely that the Goddess Temple did not have a fee agreement as defined by Ariz. R. Stat. § 13-3211(5).
Religious Freedom for Sexual Acts
Whether Arizona’s statutes prohibiting prostitution infringed upon the Goddess Temple’s free exercise of religion is less clear.
The word religion is not defined in the Constitution. To determine which religious freedoms are guaranteed, courts must look elsewhere. Often times courts will look to the pattern and practice of states currently and in the past. Using this approach, they will often say ‘this is how we have always done it,’ — United States Supreme Court Justice Antonin Scalia is known for this way of thinking.
The common law does not provide much support.
Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice?
— Reynolds v. United States, 98 U.S. 145, 166 (1878).
Citizens are allowed to think whatever they want. They may believe in one God, multiple Gods or no Gods and that is protected. Although when one acts, even in the name of religion, it may violate the principles of government. When the two conflict then there must be a determination of which is more important.
The restriction of the right to freely exercise religion has been held constitutional several times before: Reynolds v. United States, 98 U.S. 145, 166 (1878) (holding a statute banning bigamy constitutional); Prince v. Massachusetts, 321 U.S. 158, 170 (1944) (holding a state can restrict a nine year old girl from selling newspapers on a street corner, even though her religion, Jehovah’s Witness, tells her to do so); Sch. Dist. of Abington Twp., Pa. v. Schempp, 374 U.S. 203, 223-24 (1963) (holding requiring schools to read bible verses daily is not protected by the First Amendment);Stone v. Graham, 449 U.S. 39, 41 (1980) (holding a requirement of posting the Ten Commandments in each school classroom is not protected by the First Amendment’s freedom of religion).
So even assuming the Goddess Temple is a recognized religion, it is not automatically protected by the freedom of religion — because sex is an act.
However, there is another constitutional argument that does not appear to be considered from what I have seen: the law is overbroad. Legislation does infringe upon religious liberty must be narrowly tailored to achieve a compelling governmental interest. State v. Taylor, 808 P.2d 314, 319 (Ariz. App. Ct. 1990) the court noted that Ariz. R. Stat. § 13-3211(5) is “broadly written.” This suggests that the Court thought there may be exceptions to Arizona’s definition of prostitution on an overbreadth challenge. However, the court said since neither party brought up the overbreadth of the statute they would not comment on it. That is a pity, because if there is a chance that § 13-3211(5) is overbroad, I would love to hear a court’s thoughts on the rest of the prostitution chapter and its tautological definitions.
An overbreadth argument is a nuanced constitutional argument. The complainant is saying that even if there is a compelling governmental interest that would require infringing upon my rights, Congress or the state legislature, needs to narrowly write the law in the least restrictive way possible in order to avoid if possible the loss of individual liberty. This is basically arguing the legislative process was sloppy.
So there may be a chance the Goddess Temple can use the First Amendment’s Free Exercise clause of religion as a defense.
In addition to overbreadth, the United States Supreme Court may expand religious freedoms in the upcoming case Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1129 (10th Cir. 2013) cert. granted, 134 S. Ct. 678 (U.S. 2013).
In any event, it will be interesting to see how the Phoenix Goddess Temple case plays out.
See my related article on what is free exercise of religion.