Com. v. King

• Decision Date: 12 December 1977
• Citation: 374 Mass. 5,372 N.E.2d 196
• Parties: COMMONWEALTH v. Diane KING (and six companion cases 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 196

372 N.E.2d 196

374 Mass. 5

COMMONWEALTH v. Diane KING (and six companion cases ¹).

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 7, 1977.

Decided Dec. 12, 1977.

Lawrence D. Shubow, Boston (Kathleen M. Allen, Cambridge, and Joan C. Schmidt, Boston, with him), for defendants.

Andrew P. Hier, Asst. Dist. Atty., Boston (George E. Foote, Jr., Sp. Dist. Atty., with him), for the Commonwealth.

David Rossman, Boston, for Boston University Student Defender Program, amicus curiae, submitted a brief.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN, WILKINS, LIACOS, and ABRAMS, JJ.

HENNESSEY, Chief Justice.

We have before us a broad scale attack on the Massachusetts law against prostitution. The defendants, Rebecca Jones, Barbara Astrofsky, and Diane King, all were convicted for violations of G.L. c. 272, § 53. Jones and Astrofsky were convicted in a Municipal Court, appealed, and then were tried and convicted by a judge in the Superior Court on complaints of prostitution. King, after appealing her Municipal Court convictions, was tried and convicted by judges in the Superior Court on three complaints of prostitution and two complaints of common night walking, all pursuant to § 53. Fines and thirty-day suspended sentences, with periods of probation, were imposed in all cases except one case against King, wherein a six-month sentence was imposed.

In each of the seven cases below, before conviction in the Superior Court, the defendant filed motions to dismiss the complaint and for the entry of a finding of not guilty on the complaint, alleging that c. 272, § 53, is unconstitutional on its face and as applied to the defendant in that case. The judge in each case denied both motions, and the defendant in each case took exceptions to the denial of her motions. Because the motions and exceptions in all the cases raise common issues, the defendants consolidated their cases for the purposes of appeal. ² This court took jurisdiction of the consolidated appeal which is before us on bills of exceptions. Execution of the defendants' sentences was stayed pending appeal. We find no error and overrule the exceptions in all cases.

The facts underlying each conviction can be summarized as follows.

Jones.

In July, 1975, Officer McNelley of the Boston police department telephoned Jones, informing her that he had obtained her name from a male friend. When she said she could not remember this person, they arranged an appointment for the same afternoon. At that meeting, Jones informed Officer McNelley that she would perform various sexual acts with him for $50. He then arrested her and filed a complaint that "Rebecca Jones . . . , a female, was a prostitute offering her body to indiscriminate intercourse with men for hire." Officer McNelley testified that he has never brought a similar complaint against a man and that it is the practice of the vice squad division of the Boston police department to file such complaints against only females.

Astrofsky.

In November, 1975, Officer Flemming of the Boston police department observed Astrofsky with another woman in a hotel bar being approached by men. He engaged them in conversation. According to his testimony, her companion asked him, in Astrofsky's absence, whether he "was interested in going out for $75.00 each." She informed Astrofsky of his interest in "going out" for this price, and Astrofsky volunteered the information that fellatio and sexual intercourse would be included. Officer Flemming then arrested both women. He filed a complaint that "Barbara Astrofsky . . . (b)eing a female, was a prostitute offering her body to indiscriminate intercourse with men for hire."

King Cases 1, 2, and 3 (prostitution).

In April, 1975, according to the testimony of Officer Milan of the vice control unit of the Boston police department, he observed King conversing with the operator of a motor vehicle. She entered the car; it drove away. Then he and a fellow officer stopped the car. The operator of the car informed the officers that King had solicited him for sexual intercourse for $20 and that the act was to take place in his car. ³ Thereupon the officers arrested King and filed a complaint that "Diane King . . . , being a female, was a prostitute offering her body to indiscriminate intercourse with men for hire." The record does not show whether the officers also arrested the operator of the car.

In May, 1975, Detective DeLuca of the Boston police department was approached by one Debbie Wilson, who offered to engage in fellatio and sexual intercourse for $25. After he agreed to Wilson's terms, King approached the couple and offered, for an additional $25, to join Wilson in performing sexual acts with Detective DeLuca. He then arrested both women and filed a complaint that "Diane King . . . , being a female, was a prostitute offering her body to indiscriminate intercourse with men for hire."

In July, 1975, Detective McCormick of the Boston police department observed King getting into a car, followed the car, and stopped it. The male occupant of the car informed Detective McCormick that King had offered to perform sexual intercourse with him for $25, and that they were en route to her apartment. Detective McCormick then arrested King and filed a complaint charging her with prostitution in language identical to Detective DeLuca's. The record does not show whether Detective McCormick also arrested the male occupant of the car.

King Cases 4 and 5 (common night walking).

On July 13, 1975, at approximately 11:30 P.M. Patrolman Fee of the Boston police department observed King on a Boston street corner approaching and conversing with males who were on foot and in cars. He ordered her to stop this activity and she complied. On two subsequent nights he observed King engaging in similar activity. On the first such occasion he ordered her to leave the area. On the second such occasion he arrested her and filed a complaint that "Dianne (sic ) King . . . was and now is a common night walker." After this arrest, Patrolman Fee in King's presence conversed with an unidentified male who informed him that King had asked whether he wanted to go out and whether he could spend $20.

On June 9, 1975, at 3 A.M. Detective Powers of the Boston police department observed King on a Boston street corner approaching cars with male occupants. He warned her to leave the area and she complied. On June 21, 1975, at 3:55 A.M. Detective Powers observed King entering a car, stopped the car and told her to leave the area. At 4:35 A.M. he observed her at the same location, entering a car. He followed the car to Atlantic Avenue in Boston, where the driver parked the car. Detective Powers arrested King, charging her with common night walking in language identical to Patrolman Fee's.

1. The defendants assert that G.L. c. 272, § 53, in so far as it prohibits prostitution is facially unconstitutional because its definition of proscribed conduct is vague; because it prohibits the status of being a prostitute; because it discriminates against women; and because the statute proscribes conduct which is protected by the right of privacy. In addition, they argue that the § 53 proscription of prostitution was unconstitutionally applied in each of the five cases below because § 53 is enforced against female prostitutes but not against male prostitutes; because § 53 is enforced against female prostitutes but not against their male customers; because the Commonwealth failed to prove the necessary elements of the offense of prostitution in these cases; and because application of § 53 in these cases invaded the defendant's rights to privacy. Finally, the defendants maintain that § 53, in so far as it prohibits common night walking, is unconstitutionally vague as applied to King. ⁴

We hold that the prostitution provision of G.L. c. 272, § 53, as construed in this opinion, is not facially unconstitutional. In addition, we hold that the records do not show unconstitutional application of that provision to the defendants. We also hold that the common night walking provision of § 53 was not unconstitutionally vague in its application to King. Finally, we hold that the Commonwealth here proved the essential elements of the charge of prostitution, since proof of solicitation by the defendants for such acts is sufficient.

2. CONSTITUTIONALITY DUE PROCESS VAGUENESS.

The defendants contend that the terms "prostitutes" and "common night walkers" in § 53 are so vague as to violate the constitutional principle of due process of law in that these terms fail to give sufficient warning and definition of the proscribed conduct.

Prostitutes.

General Laws c. 272, § 53, provides in pertinent part: "(P)rostitutes . . . may be punished by imprisonment in a jail or house of correction for not more than six months, or by a fine of not more than two hundred dollars, or by both such fine and imprisonment." In 1959, the Legislature inserted the term "prostitutes" into the list of criminal offenses contained in § 53 without specifically defining the persons who may be punished as "prostitutes" under § 53. St.1959, c. 304, § 1. At the same time the Legislature inserted into the list of permissible forms of complaints and indictments contained in G.L. c. 277, § 79, a form for the § 53 crime of prostitution which reads "(t)hat A.B. a female, was a prostitute offering her body to indiscriminate intercourse with men for hire." St.1959, c. 304, § 2.

The defendants argue that the Legislature's failure to define the conduct proscribed in its 1959 amendment to § 53 renders that provision unconstitutionally vague because potential defendants have insufficient warning of the criminality of their conduct. Cf. Commonwealth v. A Juvenile, 368 Mass. ---, ---, ^a 334 N.E.2d 617 (1975). We do not agree.

Although no crime of prostitution by that name exists at common law (Commonwealth v. Cook, 12 Met. 93, 97 (1846)), it can also be said...