In a recent filing in the Lacey/Larkin case, federal prosecutors again perpetuate the lie that escort services and prostitution are equivalent: the former is legal, the latter is not.
Undeterred by the mistrial they caused Sept. 14, federal prosecutors are revisiting the deceitful tactics that interrupted their first stab at falsely convicting veteran newspapermen Michael Lacey and Jim Larkin for their former ownership of the classified-listings giant, Backpage.com.
In a new filing, government attorneys object to the use of the term “escort services” in a lengthy questionnaire that will be mailed to potential jurors for Round Two of this travesty of justice, scheduled to start Feb. 9.
Questions 64 and 65 of the document ask jurors their feelings about escort services and the “legal adult entertainment industry.” Prosecutors insist this is improper, that escort services and prostitution are the same, regardless of the law, and there is no such thing as a “legal adult entertainment industry” in the United States of America.
It’s almost as if the entire U.S. Attorney’s Office for the state of Arizona is stuck in the Eisenhower era. R-rated movies have yet to be invented, and the underwear section of the long-gone Sears & Roebuck Catalogue is akin to a live sex show.
Check this lame-ass objection, which has the whiff of pompadoured federal prosecutor Kevin Rapp about it, though it was actually filed by Assistant U.S. Attorney Margaret Perlmeter:
OBJECTION: The United States renews its objection to the use of the term ‘escort services.’ First, as worded, the question lumps together ‘escort services’ with ‘the legal adult entertainment industry’ and is vague, confusing, and misleading. In common usage, ‘escort services,’ particularly in the ‘adult’ context – are often associated with prostitution (which is illegal). (See e.g., http://www.yourdictionary.com/escort-service (defining ‘escort service’ as ‘[a] company that provides customers with companions or prostitutes for a fee’). Second, inserting ‘legal’ before ‘adult entertainment industry’ is misleading because it suggests to the jurors that this Court believes the law states those who work in the ‘adult entertainment industry’ are not engaging in commercial sex, prostitution, or otherwise violating the law. Third, while some states or localities regulate escorts through statutorily-defined licensing requirements, many others do not recognize or license ‘lawful’ escorts. Fourth, the United States contends that the evidence at trial will show that the vast majority of Backpage.com’s ‘escort’ ads were prostitution solicitations. Against this background, it is confusing and misleading to equate ‘escorts’ with ‘people working in the legal adult entertainment industry.’
“Yourdictionary.com”? Are you kidding me? Sure, Rapp’s no Harvard Law grad, much less Yale. But no doubt he’s heard of Webster’s Dictionary, which in this context defines “escort” as “a woman or a man who is hired to go with someone to a social event —often used before another noun [such as] an escort service/agency.”
Notably, in Webster’s, “prostitute” is not listed as a synonym for “escort.”
But since this latest filing is allegedly a legal briefing, why not cite the law instead of some third-rate online dictionary no one’s ever heard of?
Arizona law defines an escort 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 this otherwise legal practice.
By contrast, prostitution, a minor offense that most Americans think should be decriminalized, involves sex for money.
Prosecutors are attempting to muddy the water between these legal distinctions. Why? Because Backpage’s users uploaded adult-themed classifieds of their own creation to sections and subsections of the website, like “massage,” “adult,” “dating” and “escorts.”
And the government does not want to acknowledge that, as federal courts have already ruled, Backpage’s publication of the ads was 100% legal and protected by the First Amendment and Section 230 of the Communications Decency Act.
“They’re saying they’re going to prove most of the ads on Backpage were prostitution, not legal escorting. How are they going to do that? Call up everybody who ever advertised on Backpage and put them on a lie detector?” — Tucson filmmaker, activist and former sex worker, Juliana Piccillo
It’s not the first time the issue’s come up. In a June pre-trial conference, prosecutor Rapp raised the same objection to the use of the term “escort services” in the jury questionnaire for the first trial. With a straight face, Rapp told the judge that the phrase was a “misnomer” for “prostitution services.”
The defense pounced, pointing out the legality of escorts and escort services. As a result, Judge Susan Brnovich allowed the phrase to remain in the questionnaire.
The prosecution pulled a similar trick during the first trial, when they repeatedly conflated prostitution, which involves consenting adults, with sex trafficking, a horrific crime that involves either minors, or adults forced into commercial sex. Despite warnings from the judge, prosecutors continued to invoke sex trafficking and child sex trafficking, triggering a mistrial.
Ironically, this latest ruse by the government is undercut by the testimony of one of its own witnesses, a California cop, who made two significant admissions in the first trial: that escorts are legal, and that adult ads uploaded to Backpage could be selling lawful adult entertainment.
Behind the Green Dildo
I should point out that Lacey and Larkin are not charged with sex trafficking or child sex trafficking. Rather, Lacey, Larkin and their four co-defendants face up to 100 counts of conspiracy, money laundering and the facilitation of prostitution in violation of the U.S. Travel Act.
Under the Travel Act, the government must prove 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.”
To this end, the government wants a jury to presume that all advertisements uploaded by users to Backpage’s escort, adult, dating and massage sections were for illicit sex.
But California cop Brian Fichtner’s testimony at the first trial belied the government’s presumption. During direct questioning, Fichtner described how he pored over Backpage’s adult section in 2015, making a video of the computer screen as he did so. Fichtner went through several Backpage ads for the jury, claiming that the ads’ vague verbiage and photos of nude or scantily-clad women were indicative of prostitution.
Under cross-examination by Larkin’s attorney, Thomas Bienert, and Lacey’s attorney, Paul Cambria, Fichtner admitted that escorts and other adult entertainers are licensed in Sacramento County and that an array of adult services-for-pay are legal in California.
Fichtner conceded that the adult ads on Backpage were not illegal. He could not make an arrest or take a case to a district attorney based on the ambiguous language and the sometimes racy images on the site.
“If someone responded to such an ad, the only way it would turn into something unlawful is if they were exchanging sex for money, right?” Cambria asked.
“Correct,” Fichtner replied.
Fichtner acknowledged that an escort could accompany someone to dinner or to a home or an apartment. The arrangement only became illegal if it strayed into inappropriate touching under California law.
During cross, Bienert displayed a photo from a Backpage ad that a prosecutor had shown the jury: a woman holding a big green dildo.
Would it be prostitution if Bienert invited this woman to his house, and she “put on a show for me with an adult toy as long as I didn’t touch her genitals and she didn’t touch mine”?
“No,” Fichtner replied.
Similarly, a “two-girl show” would be legal, Fichtner admitted, as long as no inappropriate touching between the patron and the women took place. However, the women could pleasure each other while the patron pleasured himself.
Filmmaker, activist and former sex worker Juliana Piccillo has been following the Lacey/Larkin case for some time now. A co-founder of the Tucson chapter of the Sex Workers Advocacy Project (SWOP), Piccillo told me that this latest move from the government smacked of desperation.
“They’re really grasping,” Piccillo says. “They think if they can conflate escorting and legal escort advertising with illegal activity, with violence and exploitation and murders and rapes, that the jurors will somehow be confused into convicting Lacey and Larkin on charges that the government doesn’t have evidence for.”
Even if escorting is not licensed by a certain jurisdiction, that does not make it illegal, she observes.
“They’re saying they’re going to prove most of the ads on Backpage were prostitution, not legal escorting. How are they going to do that? Call up everybody who ever advertised on Backpage and put them on a lie detector?” she asks.
She believes that the government is pursuing Lacey and Larkin in retaliation for not closing down Backpage’s adult services listings, as Craigslist did in 2010, when pressured by politicians.
Certainly, the history of the case supports that conclusion. Piccillo also bemoaned the money wasted on this prosecution by the DOJ and myriad other law enforcement agencies.
“I think it’s obscene that the state is willing to spend millions of dollars, maybe tens of millions of dollars, on this vendetta . . . when they know they don’t have a solid case.”