At the time this article is being written, both buying and selling sex is illegal under Pennsylvania law. One way that law enforcement attempts to identify individuals endeavoring to solicit or engage in illegal sexual activity is through the use of paid-sex sting operations. These sting operations often involve undercover police officers posing as willing participants in illegal sexual conduct to lure people into self-incriminating situations. However, while these paid-sex sting operations are intended to target illegal activity, they often result in more harm than good, as they disproportionately target those who are exploited rather than the perpetrators of exploitation. This not only deepens the criminalization, victimization, and exploitation of an already vulnerable population, but can also amount to “outrageous governmental conduct” and result in the entire case being overturned.
Undercover paid-sex sting operations have historically disproportionately targeted persons in prostitution, who are predominately female victims of sexual exploitation. In the United States, persons in prostitution are two to ten times as likely to be arrested than sex buyers, even though both actors are committing acts that are unlawful. For example, in Massachusetts, the ratio of arrests of prostituted persons to sex buyers is 9 to 1.
While law enforcement engagement targeting prostitution offenses may seem superficially positive in combatting sexual exploitation, arresting people in prostitution actually perpetuates the problem. People in prostitution often represent the most vulnerable populations, with many coming from backgrounds of economic hardship, health challenges, or substance abuse. Immigrants, people of color, and other marginalized groups are among the most vulnerable in these populations, and their arrests worsen their struggles by trapping them in a cycle of poverty, stigma, and life with limited opportunities. For example, a criminal record impacts a survivor’s ability to move forward in both practical and emotional ways. Individuals navigating post-conviction life struggle with applying to jobs or finding a place to live. Facing the ramifications of a criminal record and the barriers they raise, survivors of the sex trade often return to prostitution as a means for survival.
Perhaps the most problematic aspect of paid-sex sting operations is the abuse of police power. This abuse of authority occurs when officers pay money in exchange for sex acts, meaning they engage in the very same illegal conduct they set out to address during the stings. Male officers most typically assume the undercover role of the sex buyers, since men make up the overwhelming majority of those purchasing sex. The operations then primarily affect female victims, who are the ones targeted in these sting operations.
Paid-sex sting operations can lead to situations where officers violate professional boundaries with no oversight, interference, or repercussions. These set-ups often create private, secluded settings between the male officer and the female victim. In these scenarios, female victims are not only deceived by the undercover officers, but they are also at risk of being sexually exploited in an isolated environment. When sexual exploitation does occur, not only do the officers receive sexual gratification, but they also create a power dynamic between the officers and the investigative targets that is both inappropriate and dangerous.
To make matters worse, paid-sex sting operations occur in a culture where police sexual violence is already a tremendous problem. Permitting officers to commit the same crime they seek to prevent not only incentivizes further egregious conduct, but also places the victims in a deeper state of vulnerability and victimization.
Prosecuting victims through these exploitative operations has led to victims raising the defense of “outrageous government conduct” to challenge their charges. This defense argues that the government’s actions were so extreme that it violates the basic fairness rights of the due process clause, and those arrested under those unfair conditions should not be prosecuted. This defense can be a difficult defense to prove, but it is not unheard of. In cases where the high burden is met, charges can be dismissed.
While not necessarily meeting the threshold of outrageousness, this type of conduct is undeniably unnecessary because to make an arrest of someone for prostitution under Pennsylvania or federal law, physical contact is not required. Police do not need to prove that a sexual act took place; rather, it is sufficient to prove merely that the agreement existed. Therefore, there is no reason for police to engage in physical contact, and thus commit an undisputed crime to arrest someone when the same charges can be secured without it.
While paid-sex sting operations can create many issues leading to outrageous government conduct, it can be a useful tool if it is performed fairly with the intention of combatting sexual exploitation by targeting the demand side of the industry. Police have recently shifted their focus to target sex buyers by having undercover police officers pose as persons in prostitution or post advertisements for sexual services online. We have seen success in various counties across the Commonwealth with this strategy, including in Berks County, Lancaster County, and Cumberland County.
By prosecuting sex buyers, the commercial sex trade becomes riskier for the very population who drives the market to exist, the demand. Targeting sex buyers is more effective because this strategy comports with the basic economic theory that supply and distribution follow demand.
Furthermore, sting operations often involve aggressive investigative techniques, which contribute to law enforcement personnels’ effectiveness in targeting sex trafficking and result in increased public attention to the matter. This is beneficial in the mission toward eradicating the sex trade, as it punishes those actively sustaining it, serves as a deterrent for potential sex buyers and traffickers, and spreads public awareness of the issue.
The CSE Institute urges law enforcement to continue to focus their efforts on combating the sex trade by targeting buyers of commercial sex, as they are the driving force behind its existence. Additionally, the CSE Institute encourages all law enforcement agencies to adopt strict policies that ensure that officers do not engage in sexual activity during paid-sex sting operations. Officials with the power to enforce the law must never exploit victims and should use investigative tactics to protect, rather than harm, vulnerable individuals.
This piece is part of our first-year law student blog series. Congratulations to author Madi Lopez on being chosen!
All views expressed herein are personal to the author and do not necessarily reflect the views of Villanova University Charles Widger School of Law or of Villanova University.