State v. Kayser
| Decision Date | 12 April 1977 |
| Docket Number | No. 38046,38046 |
| Citation | 552 S.W.2d 27 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Thomas Edward KAYSER, Defendant-Appellant. . Louis District, Division Three |
| Court | Missouri Court of Appeals |
Donald L. Wolff, Deborah H. Weinstein, Clayton, for defendant-appellant.
Ronald L. Boggs, Pros. Atty., G. Jeffrey Lockett, Kent W. Fanning, Asst. Pros. Attys., St. Charles, for plaintiff-respondent.
At issue in this criminal prosecution of a St. Charles County massage parlor operator is the question of whether one who maintains a commercial enterprise which masturbates its customers is engaged in criminal activity proscribed by § 563.630, RSMo. 1969. 1
Defendant Thomas Edward Kayser was charged by information with the offense of setting up and maintaining a common bawdy house. A jury trial was waived and the parties agreed to enter into a stipulation of facts to be submitted to the trial judge. It was stipulated that the State would prove beyond a reasonable doubt that on August 18, 1975, defendant did set up, maintain, and keep a business known as the Verboten Health Spa in St. Charles County. Defendant did there employ three women for the purpose of administering massages to adult customers. The privately administered massages were openly offered for the payment of money and included the touching, massaging, and masturbation of the customers' genitals. The amount of money charged was determined by the method and duration of the massages and masturbation, which were administered on a consensual basis in a private room solely within the confines of the Verboten. The customer and the person administering the massage were the only persons present in the room; and although the customer could touch and massage the breasts and body of the woman administering the massage, the customer was prohibited from touching the genitals and genital area of the woman.
The parties further stipulated that defendant was aware of and permitted these activities, and in fact directed that such activities be offered and conducted when requested by the customers at the Verboten. Defendant also directed each employee to sign an employment contract which instructed the employee to refrain from engaging in "any act of sexual intercourse, penetration or act which would result in the placing of a mouth on the genitals or anus of any customer, or by any customer upon the person administering the massage or masturbation."
The cause was submitted to the court upon this stipulation. The trial judge found beyond a reasonable doubt that defendant was guilty, as charged, of the offense of operating a bawdy house. Punishment was assessed in the form of a five hundred dollar fine, and upon the overruling of a motion for new trial this appeal was duly perfected. For reasons hereinafter stated, we reverse the judgment.
Defendant initially contends that the stipulated facts do not demonstrate his operation of a bawdy house. The fact that sexual intercourse was not offered at the Verboten, defendant submits, removes his business from that class of establishments defined by the term "bawdy house."
The statute at issue has remained virtually unchanged since 1835. 2 It and other sections proscribing bawdy houses have been construed by the appellate courts of this state many times and always in the sense of a place where illicit sexual intercourse is conducted. See State v. Malloch, 269 Mo. 235, 190 S.W. 266, 267 (1) (1916). In City of St. Louis v. Cook, 405 S.W.2d 545, 549 (6) (Mo.App.1966), our court had before it a prosecution for keeping a bawdy house under the ordinances of the City of St. Louis. In this case we stated: The opinion goes on to state that the proof necessary to establish the character of a bawdy house must in most cases be "inferential" and the evidence largely "circumstantial" but the proof in all cases goes to the establishment that illicit sexual intercourse occurs upon the premises. City of St. Louis v. Cook, supra at 550.
The very term "bawdy house" indicates that it is a house of habitation for "bawds." A bawd in Webster's Third New International Dictionary is defined as one who keeps a house of prostitution or a prostitute. In that same authority "bawdy house" is equated with "brothel" and "brothel" is defined as an establishment in which prostitutes are domiciled and apply their trade. "Prostitution" is generally considered to be the act of permitting a common and...
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