Merely five months ago, the Tribune Review conducted an analysis of over 100 prostitution cases and exposed that Allegheny County chose to criminalize condoms, deeming them as “instruments of crime.” Following outrage, Allegheny County revoked their policy criminalizing condoms, but in its place they have found yet another way to charge prostituted persons with this offense in a manner that sacrifices their safety. Recently, Allegheny County has charged prostituted persons with possession of an instrument of a crime when the arrestee has a cell phone on her person.
The American Bar Association reported that Allegheny County now criminalizes cell phones by declaring the device as an instrument of a crime. Possessing instruments of a crime is a violation of 18 Pa.C.S. § 907. A person commits a misdemeanor of the first degree if he or she possesses any instrument of crime with intent to employ it criminally. Pennsylvania’s statute defines “instrument of crime” as “anything specifically made or specially adapted for criminal use” or “anything used for criminal purposes and possessed by the actor under circumstances not manifestly appropriate for lawful uses it may have.”
A cell phone is critical to prostituted persons’ safety. Prostituted persons are in inherently unsafe situations and are constantly at risk for abuse. A cell phone can provide a sense of safety in an existence already overwhelmed by terror. Apparently, Allegheny County doesn’t see it that way.
Possessing an instrument of a crime is generally charged in conjunction with another offense. Allegheny County consistently charges prostitution with possessing an instrument of a crime – a cell phone – to enhance the charges. Pennsylvania’s prostitution statute is graded such that a first or second offense is a misdemeanor of the third degree (not to exceed one year imprisonment and/or a fine note exceeding $2,500); a third offense is a misdemeanor of the second degree (not to exceed two years imprisonment and/or a fine not exceeding $5,000); and a fourth or subsequent offense is a misdemeanor of the first degree (not to exceed five years imprisonment and/or a fine not exceeding $10,000). Further, a charge for possessing instruments of crime is always graded as a misdemeanor of the first degree (not to exceed five years imprisonment and/or a fine not exceeding $10,000).
In the context of prostitution and commercial sexual exploitation, recidivist provisions have shown to have little to no impact on behavior. Similarly, the inclusion of additional charges against prostituted persons does nothing to reduce the demand commercial sex. The Allegheny County’s policy is punitive and harmful as their previous policy. This practice further victimizes prostituted persons who are already traumatized and stigmatized via criminalization. The CSE Institute previously reported on the gross injustice of criminalizing condoms; criminalizing the possession of a cell phone warrants the same amount of outrage.
The CSE Institute is discouraged by the Allegheny County Police Department and the Allegheny County District Attorney’s Office’s decision to criminalize an everyday device that can help to keep prostituted persons safe. Instead of enhancing charges for prostituted persons, the CSE Institute recommends that law enforcement implement the “Nordic Model,” which exclusively decriminalizes those sold for sex and places the criminalization on those that purchase sex. Law enforcement should not be seeking ways to enhance the charges of victims that are misidentified as criminals. Rather, law enforcement should use their resources to target the truly culpable individuals: sex buyers – the ones who drive the market for the illegal sex trade. The CSE Institute routinely conducts trainingson trauma-informed law enforcement techniques and protocols. We invite members of Allegheny County law enforcement to attend our trainings and learn more about how to combat commercial sexual exploitation by targeting the demand.
All views expressed herein are personal to the author and do not necessarily reflect the views of the Villanova University Charles Widger School of Law or of Villanova University.