OUTRAGEOUS GOVERNMENT (MIS)CONDUCT: DUE PROCESS AS A DEFENSE IN PAID-SEX STING OPERATIONS.

• Author: Felder, Mary

INTRODUCTION 540 I. WHAT Is THE BACKGROUND OF THE OUTRAGEOUS GOVERNMENT CONDUCT DEFENSE? 543 A. What Are the Origins of the Defense? 544 B. How Is the Defense Distinct from Entrapment? 548 C. What Is the State of the Defense Today? 551 1. In Federal Court? 552 2. In State Court? 556 II. PAID-SEX STING OPERATIONS THAT USE SEXUAL CONTACT BY LAW ENFORCEMENT OR CONFIDENTIAL INFORMANTS CONSTITUTE OUTRAGEOUS GOVERNMENT CONDUCT THAT VIOLATES DUE PROCESS 557 A. Sexual Contact During Paid-Sex Sting Operations "Shocks the Conscience" 557 1. Deceptive Sex Is a Unique Intrusion on Privacy, Bodily Integrity, and Autonomy Over Intimate Relationships 558 2. The Government Has Limited Interest in Using Paid-Sex Sting Operations to Enable Prostitution Prosecutions 560 a. Engaging in Sexual Contact Is Unnecessary to Secure a Prostitution Conviction 561 b. Agents or Informants Who Engage in Sexual Contact for Purposes of Paid-Sex Stings Have Inappropriate and Dangerous Incentives 562 c. Paid-Sex Sting Operations are Unsupported by Predominant Arguments for Criminalization of Paid Sex 565 3. State Court Decisions Denying Defendants' Outrageous Government Conduct Claims in Transactional Sex Sting Operations Must be Reexamined in Light of Changing Societal Circumstances 567 B. Entrapment Is an Inadequate Substitute for the Outrageous Government Conduct Defense 570 C. The Cuervelo and Nolan-Cooper Tests Currently in Effect Clearly Prohibit Sexual Contact by Law Enforcement for the Purposes of Inducing a Crime of Prostitution 571 D. The Supreme Court Should Either Issue a Bright-Line Rule that This Conduct Is Outrageous or Adopt the Cuervelo/ Nolan-Cooper Limits that Ensure it Will Be 573 III. WITHOUTTHE DEFENSE, WHAT ARE OUR OPTIONS? 573 CONCLUSION 575 INTRODUCTION

A man visited a spa in Montgomery County, Pennsylvania, four different times in the summer of 2006. (1) Each time, he paid to receive and perform sexual acts with spa employees. (2) As a result of this conduct, police officers executed a search warrant of the spa, and ultimately charged a female employee, Sun Cha Chon, with prostitution and promoting prostitution. (3)

After paying for sex, the man was not charged with prostitution or solicitation: in fact, he was not charged at all. On the contrary, police paid him a total of $180 for the time he spent receiving oral stimulation and engaging in sexual intercourse with the female employees. (4) The man discussed the sexual encounters with police, who laughed and joked with him on multiple occasions about the acts. (5)

Despite having paid for and received sex, the man faced no charges because he was acting under the government's direction. The man was approached by the police earlier that summer after he visited the spa on his own accord and was unable to afford the cost of manual sexual stimulation. The police asked him to act as an informant to facilitate the arrests of the women working in the spa. (6) In this way, a customer of the spa was able to purchase sex on numerous occasions, paid for entirely by the police, and receive additional financial compensation, without any fear of criminal prosecution.

Luckily, Ms. Chon had a defense available to her. In July 2007, she filed a motion to dismiss, arguing that the government's action was so outrageous that it violated her constitutional due process rights. (7) Her motion was based on a little-known defense rooted in the Due Process Clause called "outrageous government conduct" (8) that is recognized in Pennsylvania. (9) The trial court granted her motion to dismiss, and the State appealed. (10) In 2009, the Pennsylvania Superior Court affirmed the dismissal, agreeing that the government's actions were so shocking that they violated Ms. Chon's constitutional right to due process of law. (11)

The outcome of Ms. Chon's case was not guaranteed: notably, today, the Outrageous Government Conduct defense is only recognized in a few jurisdictions. (12) The Supreme Court has never invalidated a government action based on this defense, and even where it is available, the threshold is often described as extremely high to the point of being nearly insurmountable. (13) Despite being a constitutional test, defendants face very different outcomes depending on their jurisdiction, and some may not have the defense available to them at all.

This Comment argues that courts should make the Outrageous Government Conduct defense available to defendants in circumstances similar to Ms. Chon's. Although the defense can be and has been applied in numerous situations, I argue that it is both useful and easy to apply in one particular circumstance: cases of sexual relations between government agents and targets of investigations, where the government's purpose is obtaining a prostitution or prostitution-related conviction.

Part I lays out the history and background of the Outrageous Government Conduct defense by explaining its origins, current status in different circuits and states, and distinction from the related defense of entrapment. Part I also explains the types of cases in which the defense is currently used, in both state and federal courts across the country.

Part II advances an argument that the Outrageous Government Conduct defense should be available to targets of paid-sex sting operations when police engage in sexual conduct or enlist confidential informants to engage in sexual conduct. The Supreme Court has never addressed a case with this fact pattern, nor has any circuit court addressed paid-sex sting operations as they relate to this defense. I argue that police engaging in sex, or enlisting confidential informants to do so, with the purpose of obtaining a prostitution or prostitution-related conviction "shocks the conscience," making it a violation of due process. I further explain why entrapment, as it stands, is an inadequate defense to protect victims of these operations. I outline one jurisdiction's test for Outrageous Government Conduct in the context of sexual relationships between police and investigative targets, and I explain why this test undoubtedly holds that paid-sex sting operations are a violation of due process. Finally, I discuss the practical implications of extending Outrageous Government Conduct defenses to all cases of law enforcement engaging in sexual relationships with targets of paid-sex stings, by arguing that the Supreme Court should either adopt a bright line rule that this conduct is outrageous or adopt a test that will ensure it will be.

1. WHAT IS THE BACKGROUND OF THE OUTRAGEOUS GOVERNMENT CONDUCT DEFENSE?

   Throughout the twentieth century, the Supreme Court discussed Outrageous Government Conduct as a defense to conviction based in the Due Process Clauses of the Fifth and Fourteenth Amendments. (14) However, the Court has not explicitly relied on this test to overturn a conviction since the early 1950s, instead alluding to it only in hypothetical. (15)

   The Outrageous Government Conduct defense is often conflated with entrapment, but there are important distinctions. (16) In particular, if the prosecution can show that a defendant was predisposed to commit the crime at issue, the dominant formulation of the entrapment defense is entirely unavailable, regardless of the extent of law enforcement inducement. (17) The Outrageous Government Conduct defense, on the other hand, is not defeated by a showing of predisposition. (18)

   The availability of the Outrageous Government Conduct defense varies widely from circuit to circuit. (19) The defense is invoked frequently in relation to controlled substance sting operations, both when law enforcement officers purchase drugs and arrest the seller, and when individuals are convicted for their involvement in drug labs run by government agents. (20) The defense has also been invoked when government agents have engaged in sexual relations with investigative targets, leading both states and a few circuits to fashion tests determining when this conduct crosses the line into Outrageous Government Conduct. (21)

   1. What Are the Origins of the Defense?

      The Outrageous Government Conduct defense was first recognized by the Supreme Court in Rochin v. California. (22) In 1949, three deputy sheriffs entered Antonio Rochin's home without consent. (23) They forced open the door to Mr. Rochin's room, where he was partially dressed and in bed with his wife. (24) When the officers pointed at two capsules on the nightstand beside Rochin's bed and asked whose they were, Mr. Rochin swallowed both capsules. (25) The officers leapt onto Rochin and tried to force the capsules out of his throat, but failed, instead handcuffing him and transporting him to the hospital. (26) Against Mr. Rochin's will, the officers directed a doctor to force a tube down Mr. Rochin's throat and pump his stomach, making him vomit up the capsules, which were found later to contain morphine. (27) Mr. Rochin was charged and convicted for possession of morphine. (28)

      On appeal, the California appellate court found that the officers were guilty of "unlawfully breaking into and entering defendant's room... unlawfully assaulting and battering defendant while in the room... [and] unlawfully assaulting, battering, torturing and falsely imprisoning the defendant at the alleged hospital." (29) Even so, the court affirmed Mr. Rochin's conviction, arguing that they were bound by Supreme Court precedent despite a "shocking series of violations of constitutional rights." (30) The Supreme Court of California denied the petition for a hearing without opinion. (31)

      At the Supreme Court, Justice Frankfurter penned an opinion condemning the police officers' actions as unconstitutional. (32) He did not have, however, a clear constitutional sticking point--a clause that proscribed these state actions. (33) Instead, he turned to the "least specific and most comprehensive protection of liberties, the Due Process Clause." (34) Acknowledging that the clause is "vague,"...