Lead Prosecutor in Lacey/Larkin Case Falsely Claims ‘Escort Services’ Same as Prostitution Under Law

Backpage.com as it looked in September 2016
Kevin Rapp, the lead prosecutor in the Lacey/Larkin case, conflates escort services with prostitution during a recent hearing, raising a red flag for the defense.

During a June 7 status conference in Phoenix’s federal court in the Lacey/Larkin case, Assistant U.S. Attorney Kevin Rapp, the lead attorney for the government, made an assertion nearly as absurd as the poofy, Liberace-style hairdo that he regularly sports.

As the parties in the case reviewed a questionnaire to be sent to prospective jurors for the upcoming August 23 trial of award-winning newsmen and former Backpage owners Michael Lacey and Jim Larkin on federal charges related to “facilitating prostitution,” Rapp conflated prostitution, an illegal activity that the majority of Americans believe should be decriminalized, with patently legal escort work.

Richard Gaxiola
Phoenix defense attorney Richard Gaxiola says prostitution and escort services are “polar opposites,” legally. (Courtesy of Gaxiola Law Group)

U.S. District Court Judge Susan Brnovich had asked the prosecution why it objected to the phrase “escort services” in a survey question about whether jurors had “strong feelings” concerning escort services and others working in the “legal adult entertainment industry.”

In response, Rapp told Brnovich that the phrase is “a misnomer” for “prostitution services,” and it “suggests that escort services [are] somewhat legal,” when it is “only legal in a very small county in Nevada.”

Whitney Bernstein, an attorney for Jim Larkin, shot back that escort services are a “lawful, legal regulated industry” in Arizona (and many other states). And for Rapp to insinuate that it is synonymous with prostitution was “not true.”

Even Brnovich, a Trump appointee, had to acknowledge that there was a distinction between escorting and prostitution. She overruled Rapp, allowing the question to remain.

But Rapp’s legal flub shines a light on the prosecution’s bad faith as it attempts to put Lacey and Larkin away for the rest of their lives. All because the two men once owned a classified listings site that mirrored Craigslist.org.

Escort Services vs. Prostitution

There is no federal law forbidding prostitution, per se. And neither Lacey nor Larkin are alleged to have “pimped” or “sex trafficked” anyone. Nor could they be. They’re journalists, not violent criminals.

Rather, the government’s superseding indictment charges Lacey, Larkin and their four co-defendants with up to 100 counts of conspiracy, money laundering and the facilitation of prostitution in violation of the U.S. Travel Act, a Kennedy-era law, intended to target the mafia.

“There is no evidence that any of these people engaged in prostitution because Backpage pushed somebody into it. There is no evidence that Backpage told some prostitute or pimp to lie or do whatever they did with their ads.” — defense attorney Gary Lincenberg

Under the language of the Travel Act, the government must prove that the defendants used “the mail or any facility in interstate or foreign commerce, with intent to . . . facilitate the promotion, management, establishment, or carrying on, of any . . .  business enterprise involving . . . prostitution offenses in violation of the laws of the state in which they are committed.”

Which is why what Arizona’s criminal code says about prostitution and escorts is of crucial importance.

Arizona law defines an “escort” as a person who, for compensation, acts “as a companion, guide or date for another person or who agrees or offers to privately model lingerie or to privately perform a striptease for another person.” The statute allows cities to regulate the practice.

By contrast, prostitution is a misdemeanor offense, usually prosecuted by municipalities. According to state statute, it involves engaging in “sexual contact” for a fee or some other valuable compensation.

Michael Lacey (left) and Jim Larkin, following an appearance in federal court in Phoenix.

Veteran Phoenix defense attorney Richard Gaxiola told Front Page Confidential  (FPC) that under the law, escorting and prostitution are “total, polar opposites.”

Gaxiola recently resolved a case where he got the prostitution-related charges against a client tossed, pleading them down to “one city code violation for operating as an escort without a license.”

He added, “We saved her from being deported as well.”

Certainly, Rapp, a former Maricopa County prosecutor, who has been an AUSA for 25 years, knows the difference between legal escort services and a prostitution offense.

So why this disingenuousness on the part of the prosecution?

Because millions of ads were posted to Backpage by the site’s users to perfectly legal subcategories of “adult,” such as “escorts.”

Indeed, the indictment alleges that the accused “were aware that the vast majority of `adult’ and ‘escort’ ads appearing on Backpage were actually ads for prostitution and took steps to intentionally facilitate that illegal activity.”

“If a trafficker is bent on kidnapping a young woman . . . and advertising her and selling her services against her will, he or she is responsible for the exploitation and victimization of that person. Backpage has nothing to do with [it].” — filmmaker and former sex worker, Juliana Piccillo

Never mind that federal and state courts have consistently ruled that these adult listings are legal, or that sex-for-money ads were forbidden by Backpage’s terms of service, or that Backpage cooperated with law enforcement and reported suspicious ads to the National Center for Missing and Exploited Children.

Forget that Craigslist had the same “adult” vertical till pressure from politicians and state attorneys general forced the site to eliminate it in 2010. (Actually, adult ads persisted on Craigslist’s personals section till 2018, when Craigslist closed that vertical as well.)

Nor, generally, could law enforcement make prostitution busts based just on viewing the ads on Backpage alone.

Yet, Lacey and Larkin are held to a higher standard and are to be made responsible for vaguely worded, third party ‘escort’ ads — which, under the law, are legal — because they allegedly resulted in acts of illicit sex?


Travel Act Facts

The defense was so troubled by Rapp’s error that it mentioned it in a motion filed two days later, complaining that the government’s proposed instructions to the jury on the Travel Act “do not include the elements of a prostitution offense or offenses under state law.”

In the motion, the defense asks the court to order the government to disclose the instructions given to the grand jury “concerning the state offenses of prostitution as incorporated in the Travel Act charges.”

If prosecutors failed to include the legal elements of prostitution, it could be “reversible error” on appeal, the motion warned.

The motion, written by Lacey’s attorney, Paul Cambria, states that

” . . . the Ninth Circuit has explained that, under the Travel Act, ‘[w]hen the unlawful activity charged in the indictment is the violation of state law, the commission of or the intent to commit such a violation is an element of the federal offense.'”

Because the government “did not include the elements of a prostitution offense or offenses in its draft jury instructions,” defense attorneys suspect that “the government gave no such instruction to the grand jury when the grand jury made its decision to indict the Defendants.”

Gaxiola agreed with the motion’s reasoning.

“I think that’s a legitimate argument, to say, well, if this is the prosecution’s position, they may have given improper instructions to the grand jury,” he says.

Victims of Whom?

Though Judge Brnovich previously ruled that the prosecution could use the word “victim” during the trial (over the objections of defense attorneys, who argued its use would be prejudicial), she struck the word from several parts of the questionnaire during the hearing, apparently agreeing that the word’s use largely would be improper at this early stage.

Still, Rapp argued for the word’s inclusion in the questionnaire, revealing that “five of our witnesses . . . will testify [they] were underage at the time they were trafficked on Backpage.”

Rapp’s witnesses may be victims of the people who manipulated and trafficked them, all of whom no doubt deserve punishment.

But these witnesses are not victims of Lacey, Larkin or Backpage any more than they are victims of the cell phone company that the traffickers used, or the makers of the cars the traffickers drove.

At the status conference, Gary Lincenberg, counsel to one of Lacey and Larkin’s co-defendants, made the point that the use of the word “victim,” in the context of the accused, assumes its conclusion.

“There is no evidence that any of these people engaged in prostitution because Backpage pushed somebody into it,” he told the court. “There is no evidence that Backpage told some prostitute or pimp to lie or do whatever they did with their ads.”

Filmmaker, activist and former sex worker, Juliana Piccillo is on the same page as Lincenberg. She told FPC that the dating app Tinder, for instance, is not “held accountable” for the “murders and rapes and assaults” that happen after people hook up via the service.

“Because, how is Tinder to know?” she asks, suggesting the situation is analogous to that of Backpage.

Save that Backpage’s former owners are being prosecuted. (Note: Lacey and Larkin sold Backpage in 2015.)

“You could speculate that some of the people [on Backpage] are going to meet up and maybe make a deal that is no longer legal,” she says. “But making a deal to get together and meet as an escort and a client is legal.”

She adds: “I don’t see how Backpage violated any law or are responsible for what happens between two parties.”

Nor can Backpage be responsible for acts of sex trafficking somehow connected to ads uploaded to Backpage by others.

“If a trafficker is bent on kidnapping a young woman . . . and advertising her and selling her services against her will, he or she is responsible for the exploitation and victimization of that person. Backpage has nothing to do with [it],” Piccillo contends.

One hopes that such a common-sense analysis will take hold with the jury. But the prosecution seeks to sway jurors with tales of atrocities done by others that it will then blame on the site’s former owners.

There is no better evidence of this bad faith than Rapp’s ridiculous suggestion that escort services and prostitution are the one and the same, Arizona law be damned.

To what extent the prosecution will twist the law to its ends remains to be seen. Suffice it to say, Lady Justice already resembles a soiled dishrag in Rapp’s hands.

Please also read:
Prosecutors’ ‘Murder Motion’ in Lacey/Larkin Case Fails, but Feds Can Still Smear Defendants at Trial
Cindy McCain Rewrites Her History of Opioid Abuse in New Memoir

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About Stephen Lemons

Stephen Lemons is an award-winning investigative journalist with more than 20 years of experience covering everything from government corruption to white-supremacist gangs. In addition to Front Page Confidential, his work has appeared in Phoenix New Times, the Los Angeles Times, Salon.com, and the Southern Poverty Law Center’s Intelligence Report magazine.

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