Com. v. Walter

• Decision Date: 14 March 1983
• Citation: 388 Mass. 460,446 N.E.2d 707
• Parties: COMMONWEALTH v. Cherie M. WALTER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 707

446 N.E.2d 707

388 Mass. 460

COMMONWEALTH v. Cherie M. WALTER.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued Dec. 6, 1982.

Decided March 14, 1983.

Henry P. Sorett, Cambridge, for defendant.

Kevin J. Ross, Legal Asst. Dist. Atty., East Cambridge, for the Commonwealth.

Before HENNESSEY, C.J., and ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

HENNESSEY, Chief Justice.

The defendant appeals from her conviction by a jury on two complaints. One complaint charged her with engaging in common, indiscriminate sexual activity for hire, in violation of G.L. c. 272, § 53. ¹ The other charged her with advertising the business of massage without being licensed, in violation of G.L. c. 140, § 51. ² She was sentenced to two concurrent thirty-day terms at the Massachusetts Correctional Institution, Framingham. Her motion to stay the sentence pending appeal was denied. ³ We transferred the case from the Appeals Court on our own motion. We affirm the convictions.

The parties filed a statement of agreed facts, which we summarize as follows. On January 28, 1981, Officer James Walsh of the Cambridge police department received a radio call. In response, Officer Walsh changed into civilian clothes and went to the detective bureau of the Cambridge police department. There, Detective Anthony Bombino showed him a copy of an advertisement appearing in the January 27, 1981, edition of the Boston Phoenix newspaper, which read: "Swedish & Shiatsu Massage in Harvard Square Chris 661-----." The newspaper advertisement was admitted in evidence over the defendant's objection.

Officer Walsh placed a telephone call to 661-----, and asked to speak to "Chris." The person who answered the telephone stated that she was "Chris." Officer Walsh told her that he was answering the advertisement in the Boston Phoenix and that he was interested in getting a massage. "Chris" asked him if he was really interested in getting a massage, and he said, "Yes." "Chris" told him an address on Massachusetts Avenue, apartment 24, and that the massage would cost $30. Detective Bombino saw Officer Walsh call 661-----, and heard his conversation.

Officer Walsh went to the address in an unmarked police car with Detective Bombino and two other policemen. He pressed the buzzer for apartment 24, and a woman, whom he later identified as the defendant, came to the door. He asked if she were the "Chris" with whom he had just spoken, and she said, "Yes. Why don't you come up?" He followed her to apartment 24, where he saw a man sitting in the bedroom clothed only in pants. After a brief conversation with the defendant, the man put on the rest of his clothing and left.

The defendant invited Officer Walsh into the bedroom, and told him to get undressed. She asked him for $30, which he gave her. She massaged his body generally, using her hands and some oil. During the course of the massage she removed her shirt and was naked from the waist up. She then massaged his genitals, in an act of masturbation, for about forty-five seconds. Officer Walsh then got off the bed and said he was a police officer, and that she was under arrest for prostitution. During the arrest Detective Bombino gained entry to the apartment and seized two telephones bearing the number 661----- from the apartment.

Joseph Nicoloro testified that he was the senior sanitary inspector for the city of Cambridge, and was responsible for keeping records of licenses granted to masseuses, masseurs, and massage parlors in the city. He further testified that no license had ever been granted to the defendant or to the premises at which she was arrested.

In response to a motion by the defendant, the Commonwealth filed a bill of particulars alleging, as the basis for the complaint charging common, indiscriminate sexual activity for hire, that the defendant "for thirty dollars did massage Officer Walsh and in the course of that massage did masturbate his penis with her hands." Prior to trial, the defendant moved to dismiss this complaint on the ground that the complaint and bill of particulars did not allege an offense within the meaning of G.L. c. 272, § 53. The motion was denied, as was a motion to dismiss the complaint under G.L. c. 140, § 51. A motion for required findings of not guilty made at the close of the Commonwealth's case was also denied.

The defendant argues that a full body massage which includes the genitals, by use of the hands only, for a fee, is not prostitution within the meaning of the statute. In Commonwealth v. King, 374 Mass. 5, 12, 372 N.E.2d 196 (1977), we noted that the Legislature had not defined prostitution, and so turned to common understanding for definition of the term. We concluded that prostitution is "common indiscriminate sexual activity for hire." See Commonwealth v. United Food Corp., 374 Mass. 765, 767, 374 N.E.2d 1331 (1978); Commonwealth v. Bucaulis, 6 Mass.App. 59, 65-66, 373 N.E.2d 221, cert. denied, 439 U.S. 827, 99 S.Ct. 100, 58 L.Ed.2d 121 (1978). The defendant does not argue that her acts were not common, indiscriminate, or for hire, but rather that they were not "sexual activity." She argues that "sexual activity" is confined to coitus or oral-genital contact.

The language of King --"sexual activity"--is broad, and by common understanding, includes the conduct involved here. See People v. Costello, 90 Misc.2d 431, 433, 395 N.Y.S.2d 139 (N.Y.Sup.Ct.1977) (statute defines prostitution as sexual conduct for a fee; common understanding of sexual conduct includes sexual intercourse, deviate sexual intercourse, and masturbation). We relied on Commonwealth v. Cook, 12 Met. 93, 97 (1846), to support our definition of prostitution in King. Cook defined prostitution in part as offering one's body to an "indiscriminate intercourse" and "offering to indiscriminate lewdness."

We conclude that prostitution includes performing masturbation upon a person's genitals by another's hands, for a fee. The term "sexual activity," resting as it does on the common understanding of the meaning of prostitution, and on Commonwealth v. Cook, supra, includes such acts. Accordingly, we reject the defendant's contention that the acts proved were not prostitution within the meaning of G.L. c. 272, § 53.

The defendant next argues that prohibition of her activities interferes with her constitutional right to privacy. She relies on decisions of the United States Supreme Court, based on the United States Constitution, as well as on Commonwealth v. Ferguson, --- Mass. ---, --- - ---, Mass.Adv.Sh. (1981) 1551, 1553-1554, 422 N.E.2d 1365, and Commonwealth v. Balthazar, 366 Mass. 298, 302, 318 N.E.2d 478 (1974), in which we held that G.L. c. 272, § 35, which prohibits "unnatural and lascivious acts," does not apply to private consensual conduct of adults. The defendant's prostitution conviction is based on the massage she gave Officer Walsh in her apartment. In Commonwealth v. King, supra 374 Mass. at 14, 372 N.E.2d 196, we held that, since the defendants' convictions were based on solicitation "in a place to which the public had access ... their convictions, relying on no private conduct, implicate no constitutionally protected rights of privacy." See State v. Allen, 37 Conn.Supp. 506, 424 A.2d 651 (1980); United States v. Moses, 339 A.2d 46, 50 (D.C.1975), cert. denied, 426 U.S. 920, 96 S.Ct. 2624, 49 L.Ed.2d 373 (1976); People v. Johnson, 60 Ill.App.3d 183, 189-190, 17 Ill.Dec. 382, 376 N.E.2d 381 (1978). In King, supra 374 Mass. at 14, 372 N.E.2d 196, we did not decide whether a conviction of prostitution based on the performance of sexual acts for hire in private would violate any constitutional right of privacy.

The scope of the right to privacy under the United States Constitution is not well defined. However, whatever protection it affords to the private, sexual activities of consenting adults, we conclude that the defendant's activities were not protected, because they were performed for a fee. We will not extend a constitutional right to privacy to one who indiscriminately performs sexual acts for hire. See Stratton v. Drumm, 445 F.Supp. 1305, 1309 (D.Conn.1978); Brown v. Haner, 410 F.Supp. 399, 401 (W.D.Va.1976); MRM, Inc. v. Davenport, 290 N.W.2d 338, 347-348 (Iowa 1980); State v. Price, 237 N.W.2d 813, 818 (Iowa), appeal dismissed, 426 U.S. 916, 96 S.Ct. 2619, 49 L.Ed.2d 370 (1976); Commonwealth v. Dodge, 287 Pa.Super. 148, 155-159, 429 A.2d 1143 (1981); Tisdale v. State, 640 S.W.2d 409, 412-414 (Tex.App.1982). Commercial sex is performed for profit and the sexual contact involved is incidental to that profit. The impersonal nature of the performance of commercial sex, such as was involved here, is indicated by the fact that anyone willing to pay could enter the defendant's apartment and receive a genital massage. The decision to engage in the business of sex for money is not the type of intimate, personal decision which is protected by the right to privacy. See State v. B Bar Enters., 133 Ariz. 99, 649 P.2d 978, 980 (Ariz.1982); State v. Gaither, 236 Ga. 497, 498, 224 S.E.2d 3781 (1976); State v. Price, supra; Commonwealth v. Dodge, supra. Cf. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 68 n. 15, 93 S.Ct. 2628, 2641 n. 15, 37 L.Ed.2d 446 (1973). Our analysis is equally applicable to a sexual privacy right established under State law. Consequently, we conclude that the conviction of the defendant for prostitution based on her...