Prostitution, Rape, or Both?

D and V met at a bar, then went to a hotel room and engaged in sexual intercourse. V claims that she was raped. D claims that V is a prostitute and that he made a deal with her for $50, but that when it came time to pay he had only $20 with him. V became enraged and accused him of rape.

How should the court rule on the following offers of evidence?

a. D's testimony about conversations with V concerning sex for money earlier in the evening.
b. Testimony by others that they had engaged in prior transactions of prostitution with V.
c. Evidence that V had been prosecuted and twice convicted of prostitution before the encounter with D.
d. Evidence that V had a reputation as a prostitute in the community in which both D and V lived.

Although it would be likely that D would be permitted to testify about the circumstances of his encounter with V, the inference from such proof that "V is a prostitute" and hence likely to have behaved in a particular way would likely run afoul of the policy of Rule 412. Other kinds of evidence supporting this inference would almost certainly be banned by that rule. Of course, just becuase V is a prostitute does not mean she is incapable of being raped. However, the fact of her being picked up in a bar and going to a hotel room, coupled with proof that she was a prostitute, would indicate that she had made a bargain to engage in sex, thereby consenting. This distinguishes this problem from the situation in the Gouveia case and makes the proof of her prior sexual behavior much more pertinent here.

In Commonwealth v. Joyce, 382 Mass. 222 (1981), the Massachusetts Supreme Judicial Court held that it was reversible error to exclude evidence under the Massachusetts rape-victim shield statute that the victim had twice previously been charged with prostitution. In Joyce, the court held that the evidence was admissible not to show that the victim was a prostitute and that it was more likely that she had consented to sex with the defendant, but rather to show that the victim's allegations against the defendant might have been motivated by her desire to avoid further prosecution against her. Professor Althouse points out:

While it is plausible that a prostitute might engage in extortion with a threat of false report, actually carrying out the threat seems quite farfetched. Further, given the discretion exercised by the police in deciding which rape claims to report and by the prosecutor in determining which cases to file, it seems wildly unlikely that arrest and prosecution would result.

See Althouse, Nw. U.L. Rev., supra.

Prosecutor Fairstein reports that, in her experience, unfortunately Althouse's first point is not correct but, even more unfortunately, the second point is:

It is unlikely that any occupation or lifestyle exposes a woman to the threat of assault and gratuitous violence as constantly and completely as prostitution. Every year we see scores of "working girls'' who have been victimized by assailants who are confident that these women will be unable to go to the police for help since they live outside the law.

The questions most often posed in this regard are: "Can a prostitute be raped?'' "Isn't she assuming that risk by the very nature of her work?'' "Isn't it impossible to convict a rapist of forcing a prostitute to have sex with him? That's what she was going to do anyway.''

There are jurisdictions in this country in which these women are denied protection of the law, which is a rather shocking commentary on societal views of both women and rape. In 1991, for example, a journalist published a report that the police in Oakland, California, had closed more than two hundred reports of sexual assault--those made by prostitutes and drug addicts--without a single interview or follow-up investigation. The cases were simply "unfounded''--police jargon for saying that no crime ever occurred. It was only when the news story about their failure to examine the complaints appeared that the police were forced to reopen the many cases.

Similarly, in a Southern California community the same year, police closed all rape reports made by prostitutes and addicts by placing them in a file stamped "NHI''--No Human Involved. It is astounding to see in how many towns and cities this travesty is tolerated. In New York, and in other urban areas where prostitution flourishes despite its illegal status and accompanying risks, the police know full well the reality of the situation and generally are responsive to such complaints.

Are there ever false reports, and don't these cases cause serious credibility problems for juries? The answer to both questions is sometimes.

The most obvious kind of problem in complaints made by prostitutes is what police call "fare beat'' cases. This is somewhat analogous to the individuals who jump a turnstile in a subway station to avoid buying a token and paying the fare. They are guilty of a crime called theft of services. They have cheated the system by not paying the fare as the rest of us must--hence they are "fare beaters.''...

In "fare beat'' cases no rape has occurred; there has been no force, no threat, no violence--as the woman usually admits ... the next morning. There has, instead, been a theft of her services. The sexual act was consensual but the woman was defrauded of her fee. It is obviously critical to identify these cases and get them out of the system--they do jaundice law enforcement workers who have much more important things to do than chase down false reports.

That issue aside, the rape and sexual assault of prostitutes illustrate better than any other kind of victimization that these crimes are not about sex. The availability of commercial sexual partners in a place like Manhattan is, sadly, limitless. The prices are correspondingly very low--almost every kind of act is for sale for less than the price of a meal at McDonald's. But as everyone who understands the history of this behavior recognizes, prostitutes are victims of rapists whose motives are degradation and humiliation, control and possession, anger and hatred, intimidation and terrorization. These women desperately need the protection of the law and yet are too frequently denied access to the system of justice.

Danny Minella, by the age of twenty-eight, appeared to be a model citizen in the small Westchester village in which he had been raised. He had achieved the rank of Life Scout during his high school days, gone on to a prestigious college before returning home to help his immigrant parents run their thriving retail clothing business, and served in the community as an auxiliary police officer.

In September 1983, a prostitute working on West Forty-third Street was propositioned by a handsome young man driving a Lincoln Continental. Her pimp, several doorways down the sidewalk, nodded his approval and Ginger, the prostitute, negotiated a price and tucked the thirty dollars the driver handed her into her boot before she got into the front passenger seat. They drove around the corner to Tenth Avenue, which Ginger expected, but she did not expect to see the gun that her "date,'' as she called the driver, removed from beneath his seat and held against her head.

From his back pocket, the driver then produced a pair of handcuffs, attaching one circle to Ginger's wrist and the other to the steering wheel. Holding the gun directly to the side of the anguished woman's head, he told her he was going to play Russian roulette with her and commanded her to suck his penis. When he had ejaculated, he calmly lowered the gun, unzipped Ginger's knee-high boots to remove the several hundred dollars she had made that evening, uncuffed her, and let her out by the side of the car in her bare feet. He told her there was no point in reporting to anyone what had happened since he himself was a police officer.

By the time Ginger walked back to her usual corner, she was determined to go to the Midtown South Precinct and make a formal complaint. She knew her pimp had recorded the plate number as she entered the car, and she knew the fancy Continental even had a small brass plate on the dashboard that said "Danny.'' She knew that some of the cops who had locked her up in the past would believe her this time since she had never cried wolf before. But her pimp disagreed. He saw no need to call police attention to either of them, and said that if the same driver came back, he'd take care of the guy himself.

During a period of five weeks, Danny made repeated forays into the midtown strip. He became bolder and bolder, cocking his gun and actually pulling the trigger as he sodomized and raped his cuffed victims on the front seat of his car. On one occasion, after blindfolding the young woman he had lured in, he drove her to a storefront in Westchester, took her down to the basement stockroom, and attacked her there, before driving her halfway back to Manhattan and throwing her out on the side of the parkway.

He had claimed four victims by this time, two of whom had gone to the police, described their plight, and given the partial license plate they had remembered. The midtown cops, well aware of the vulnerability of these women, were looking for the Lincoln every night between midnight and four A.M. And so were the pimps, because word had spread on the street. On October 11, 1983, at one in the morning, Ginger spotted the car and Danny cruising the Deuce (as Forty-second Street is known in the trade). She ran to a pay phone to call 911, fearful that her pimp would attempt to take Danny on himself and be shot to death.

Two patrol cars were on the scene immediately and one group of cops recognized Ginger. She repeated her story and the officers confronted Danny, whom she identified face-to-face. When the cops searched him, they found a switchblade in his pocket and a loaded semiautomatic gun under the car seat, next to a pair of handcuffs and a magazine clip with seven more live rounds.

The following morning, after all of his victims had identified him in a lineup, he was placed in a police car for the ride downtown to central booking. One of the detectives leaned his head in the front window to tell the cop, "Take the paperwork to Fairstein's office--she'll write up the case.'' Minella groaned, "You can't take me there.'' Nobody paid any attention to him, but when the cop walked into my office with the arrest report, the problem was immediately apparent. I had known Danny Minella and his family all of my life. His parents were fine, decent people who had worked a lifetime to establish a successful retail business and raise a family. I had gone to school with their sons and shopped in their store. I didn't want to see Danny any more than he wanted to see me.

I assigned the case to one of my senior colleagues, Peggy Finerty. She indicted Minella for the series of rapes and robberies. Months later, the case actually went to trial--I think Minella and his lawyer both believed that the women would never show up, or in the alternative, that jurors would neither care about them nor believe their testimony. He was convicted on all counts and sentenced to a term of nine to eighteen years in state prison. The morning after the verdict, when Peggy called to tell the women that the rapist had been found guilty, one of them said to her, "God bless America! Where else could a prostitute be raped and be believed in a court of law. Thank you.''...

The vulnerability to violence of the women who live on the street--whether they are prostitutes or drug addicts, or merely homeless or mentally ill--is extraordinarily greater than that of those with a more sheltered lifestyle. The criminal justice system must be made accessible to every woman who is victimized, no matter how unsavory or unappealing the circumstances under which the attack occurs.

Fairstein, supra, at 171-177.