Massachusetts Supreme Judicial Court Changes Jury Instruction for Pimping Charge

The Massachusetts Supreme Judicial Court today changed the language of the model jury instruction for cases involving the prosecution of pimps.  The name of the case is Commonwealth v. Brown

On June 21, 2012, police officers were conducting a sting operation in Saugus to identify prostitutes and pimps.  The police identified two prostitutes from Internet advertisements and made arrangements to meet them at a local hotel.  Officers conducting surveillance saw the two prostitutes arrive at the hotel in a black car with two men (including the defendant).  An undercover cop, posing as a customer, met with one of the women and agreed to pay her $250 in exchange for sex.  Immediately after handing over the $250 to the prostitute, the cop answered a prearranged phone call and told both prostitutes to leave.  The women returned to the car in which they had arrived and drove away from the hotel parking lot with the defendant and another man.  The cops stopped the car and searched the defendant.  Inside his shoe was the $250 that the undercover cop had paid to one of the prostitutes.  The defendant was charged with, and ultimately convicted of, deriving support from prostitution.  He appealed and the Supreme Judicial Court affirmed his conviction.

The defendant’s primary argument was that the instructions given by the trial judge to the jury had not made it clear that the statute was intended to punish pimps.  The Supreme Judicial Court acknowledged the statute was aimed at pimps.  However, the plain language of the statute might allow for the punishment of anyone who accepted anything of value from a prostitute (for example, a child of a prostitute might be technically guilty of violating the statute by accepting a sandwich from his mother that was paid for by proceeds from prostitution).  Arguably, any financial relationship with a known prostitute might create criminal liability.  The SJC attempted to address this problem by changing the jury instructions to read that in order to violate this statute, a defendant must have had knowledge of, and intended to profit from, a person’s prostitution.  The Court ruled the Commonwealth had presented sufficient evidence for the jury to have rationally concluded he was guilty of deriving support from a prostitute, where: (1) he drove to the hotel with the prostitute; (2) he waited in the car while the prostitute met with a potential customer; (3) he was still in the car when the prostitute returned with $250 that was intended to compensate her for sex; and (4) he took the money from her.  Accordingly, the defendant’s conviction will stand.

In 2011, the Massachusetts Legislature enacted a similar statute aimed at preventing sex trafficking.  The defendant in this case might have also been charged with (and convicted of) that statute, which criminalizes knowingly benefiting as a result of causing another person to engage in commercial sexual activity.  The sex trafficking statute carries much harsher penalties than the deriving support statute (a 20-year maximum penalty instead of a five-year maximum penalty).  With both of these statutes, the Commonwealth has considerable resources in prosecuting pimps and sending them to prison.