Chapter 15 Crimes Against Public Order And Morality
Contemporary Law Chapter 15 CRIMES AGAINST PUBLIC ORDER AND MORALITY
Crimes against public order and morality are intended to insure that individuals walking on sidewalks, traveling on the streets, or enjoying the public parks and facilities are free from harassment, fear, threat, and alarm. This category of crime includes a large number of seemingly unrelated offenses that threaten the public peace, quiet, and tranquility. The challenge presented by these offenses is to balance public order and morals with the right of individuals to exercise their civil liberties. A prime example of a crime against public order is individual disorderly conduct. This broadly defined offense involves acts that create public inconvenience and annoyance by directly …show more content…
threatening individuals’ sense of physical safety. Disorderly conduct entails offenses ranging from intentionally blocking the sidewalk and acting in an abusive and threatening manner to discharging a firearm in public. Group disorderly conduct (riot) entails tumultuous or violent conduct by three or more persons.
The second category of crimes against public order and morals covered in this chapter includes offenses against the public order that threaten the order and stability of a neighborhood. We focus on two so-called quality-of-life crimes. At common law, vagrancy was defined as moving through the community with no visible means of support. Loitering at common law was defined as idly standing on the corner or sidewalk in a manner that causes people to feel a sense of threat or alarm for their safety. These broad vagrancy and loitering statutes historically have been employed to detain and keep “undesirables” off the streets. The U.S. Supreme Court in recent years has consistently found these laws void for vagueness and unconstitutional. The same constitutional arguments are being used today to challenge ordinances directed against the homeless and gangs. The last section of the chapter on crimes against public order and morals examines the overreach of the criminal law, or so-called victimless crimes. These are offenses against morality. The individuals who voluntarily engage in victimless crimes typically do not view their involvement as harmful to themselves or to others. We initially center our discussion of victimless crimes on prostitution and soliciting for prostitution. The next section on victimless crimes examines whether the prohibition on obscenity should be extended to violent video games that are thought to harm children or whether these games are protected under the First Amendment to the U.S. Constitution.
DISORDERLY CONDUCT
The common law punished a breach of the peace. This was defined as an act that disturbs or tends to disturb the tranquility of the citizenry. Blackstone notes that breaches of the peace included both acts that actually disrupted the social order, such as fighting in public, and what he terms constructive breaches of the peace or conduct that is reasonably likely to provoke or to excite others to disrupt social order. Blackstone cites as examples of constructive breaches of the peace both the circulation of material causing a person to be subjected to public ridicule or contempt and the issuing of a challenge to another person to fight. The common law crime of breach of the peace constituted the foundation for American state statutes punishing disorderly conduct. An example of a statutory definition of the misdemeanor of disorderly conduct is the Wisconsin law that punishes anyone who “in a public or private place, engages in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance.”2 Other statutes specify the conduct constituting disorderly conduct. The Illinois statute defines disorderly conduct as any act knowingly committed in an unreasonable manner so as to “alarm or disturb another and to provoke a breach of the peace.” The Illinois law then elaborates on this definition and lists specific acts that constitute a breach of the public peace, including a false fire alarm or false report of criminal activity to the police, a false report of an explosive device, a false report of child or elder abuse, and an annoying or intimidating telephone call made to collect a debt.3 The Arizona statute requires an act committed with a specific intent to disturb the peace or quiet of a neighborhood, family, or person or committed with the knowledge that it is disturbing the peace. The Arizona law lists fighting, unreasonable noise, use of abusive or offensive language to any person likely to cause retaliation, commotion intended to prevent a meeting or procession, refusal to obey a lawful order to disperse, or recklessly handling, displaying, or discharging a deadly weapon or dangerous instrument.
Model Penal Code
Section 250.2. Disorderly Conduct
(1) A person is guilty of disorderly conduct if, with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he engages in fighting or threatening, or in violent or tumultuous behavior; or
(b) makes unreasonable noise or offensively coarse utterances, gesture or display, or addresses abusive language to any person present; or
(c) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.
“Public” means affecting or likely to affect persons in a place to which the public or substantial group has access; among the places included are highways, transport facilities, schools, prisons, apartment houses, places of business or amusement, or any neighborhood.
(2) An offense under this section is a petty misdemeanor if the actor’s purpose is to cause substantial harm or serious inconvenience, or if he persists in disorderly conduct after reasonable warning or request to desist. Otherwise disorderly conduct is a violation to a fine.
Analysis
• The Model Penal Code limits disorderly conduct to specific acts likely to create what the code terms a public nuisance. The commentary notes that the proposed statute does not include conduct tending to corrupt or to annoy other individuals.
• The act must be committed with the purpose to cause public inconvenience, annoyance, or alarm or recklessly creating a risk thereof. Guilt cannot be based on the argument that an individual should have foreseen the risk of public annoyance or alarm; “nothing less than conscious disregard of a substantial and justifiable risk of public nuisance will suffice for liability. Conviction cannot be had merely on proof that the actor should have foreseen the risk of public annoyance or alarm.”
• Disorderly conduct is directed at disturbing the peace and quiet of the community. The code excludes family disputes within the home.
• The section limits imprisonment to circumstances in which an individual’s purpose is to cause significant harm or serious inconvenience or in which an individual continues the crime despite warnings or requests to halt.
• The Model Penal Code also includes specific sections on the abuse of a corpse; cruelty to animals; desecration of graves, monuments, and places of worship; disruption of meetings and processions; false public alarms; harassment; loitering or prowling; obstructing highways or other public passages and processions; public drunkenness; unlawful eavesdropping; surveillance; and breaching the privacy of messages.
Model Penal Code
Section 250.1. Riot; Failure to Disperse
(1) A person is guilty of riot, a felony of the third degree, if he participates with two or more others in a course of disorderly conduct:
(a) with purpose to commit or facilitate the commission of a felony or misdemeanor;
(b) with purpose to prevent or coerce official action; or
(c) when the actor or any other participant to the knowledge of the actor uses or plans to use a firearm or other deadly weapon.
(2) Where three or more persons are participating in a course of disorderly conduct likely to cause substantial harm or serious inconvenience, annoyance or alarm, a peace officer o other public servant engaged in executing or enforcing the law may order the participants and others in the immediate vicinity to disperse. A person who refuses or knowingly fails to obey such an order commits a misdemeanor.
Analysis
The Model Penal Code requires that an individual participate together with two or more other persons in a course of disorderly conduct with the required purpose or knowledge. It is not sufficient that an individual was present at the assembly or disturbance.
The Model Penal Code also punishes a failure to disperse.
What is the prosecution required to prove to convict a defendant of incitement to riot?
PUBLIC INDECENCIES: QUALITY-OF-LIFE CRIMES
Criminal law texts traditionally devote very little attention to public indecencies.
These offenses include public drunkenness, vagrancy, loitering, panhandling, graffiti, and urinating and sleeping in public. A significant number of arrests and prosecutions are devoted to these crimes against the quality of life, but for the most part, they receive limited attention because they are misdemeanors, are swiftly disposed of in summary trials before local judges, and disproportionately target young people, minorities, and individuals from lower socioeconomic backgrounds. In the 1980s, scholars began to argue that seemingly unimportant offenses against the public order and morals were key to understanding why some neighborhoods bred crime and hopelessness while other areas prospered. This so-called broken windows theory is identified with criminologists James Q. Wilson and George Kelling. Why the name broken windows? Wilson and Kelling argue that if one window in a building is broken and left unrepaired, this sends a signal that no one cares about the house and that soon every window will be broken. The same process of decay is at work in a neighborhood. A home is abandoned, weeds sprout, the windows are smashed, and graffiti is sprayed on the building. Rowdy teenagers, drunks, and drug addicts are drawn to the abandoned structure and surrounding street. Residents find themselves confronting panhandlers, drunks, and addicts and develop apprehension about walking down the street …show more content…
and flee the area as property values drop and businesses desert the community. The neighborhood now has reached a tipping point and is at risk of spiraling into a downward cycle of crime, prostitution, drugs, and gangs. The solution is to address small concerns before they develop into large-scale crimes. We can question, along with some researchers, whether small incidents of disorder inevitably lead to petty crime, then to serious offenses, and finally to neighborhood decay. Nevertheless, surveys indicate that most people are more concerned with the immediate threat to their quality of life posed by rowdy juveniles, drug dealers, prostitutes, and public drunkenness than they are with the more distant threats of rape, robbery, and murder. A central focus of the broken windows theory in cities where it has been adopted is combating Vagrancy and Loitering
Vagrancy is defined under the common law as wandering the streets with no apparent means of earning a living (without visible means of support).
Loitering is a related offense defined as standing in public with no apparent purpose. The early vagrancy statutes were passed in reaction to the end of the feudal system and required the vast army of individuals wandering the countryside to seek employment. These same laws were relied on during the labor shortage resulting from the Black Death in the fourteenth century to force individuals into the labor market. There was also the fear that these bands of men might loiter or gather together to engage in crime or
rebellion. Loitering or Prowling
A person commits a violation if he loiters or prowls in a place, at a time, or in a manner not usual for law-abiding individuals under circumstances that warrant alarm for the safety of persons or property in the vicinity. Among the circumstances which may be considered in determining whether such alarm is warranted is the fact that the actor takes flight upon appearance of a peace officer, refuses to identify himself, or manifestly endeavors to conceal himself or any object. Unless flight by the actor or other circumstance makes it impracticable, a peace officer shall prior to any arrest for an offense under this section afford the actor an opportunity to dispel any alarm which would otherwise be warranted, by requesting him to identify himself and explain his presence and conduct. No person shall be convicted of an offense under this Section if the peace officer did not comply with the preceding sentence, if it appears at trial that the explanation given by the actor was true and, if believed by the peace officer at the time, would have dispelled the alarm.
Homelessness
City and local governments have increasingly relied on municipal ordinances to stem the tide of a growing homeless population. The National Law Center on Homelessness and Poverty and the National Coalition for the Homeless issued a report in 2009 titled Homes Not Handcuffs: The
Criminalization of Homelessness in U.S. Cities that documents the increase and enforcement of laws prohibiting urban camping, sleeping in the parks and subways, aggressive panhandling, trespassing in areas under bridges and adjacent to parks, and blocking sidewalks. The report also finds laws against loitering, jaywalking, and open alcoholic containers. Several cities also prohibit charities, churches, and other organizations from serving food to the needy outside designated areas. The report concludes that these local ordinances have the effect of making it a crime to be homeless. The National Coalition for the Homeless singles out the ten “meanest cities” toward the homeless. These cities are Los Angeles, California; St. Petersburg, Florida; Orlando, Florida; Atlanta, Georgia; Gainesville, Florida; Kalamazoo, Michigan, San Francisco, California; Honolulu, Hawaii; Bradenton, Florida; and Berkeley, California.
Gangs
It is estimated that that there are roughly 21,000 gangs active in the United States with an estimated 700,000 gang members. Gangs are no longer limited to large urban areas and today are active in nearly every city, suburb, and rural area. These gangs are involved in criminal activity ranging from drugs and prostitution, to extortion and theft, and some have members throughout the United States as well as in Mexico and Central America. The Illinois legislature made several legislative “findings” concerning the peril posed by gangs.
• Urban, suburban, and rural communities are being “terrorized and plundered by street gangs.”
• Street gangs are often “controlled by criminally sophisticated adults” who manipulate or threaten young people into serving as drug couriers and into carrying out brutal crimes on behalf of the gang.
• Street gangs present a “clear and present danger to public order and safety.”
States have adopted various legal approaches to controlling gangs. Special gang statutes make it a crime to solicit, to cause any person to join, or to deter any person from leaving a gang, and enhanced punishment is provided for crimes committed to further the interests of gangs. Gang members have also been prosecuted under organized crime statutes, and laws also provide for the vicarious civil liability of parents for the conduct of their children. Various school districts prohibit the display of gang paraphernalia and colors, and some correctional systems provide rewards for gang members who leave the gang and cooperate with authorities. In 2009, the City of Los Angeles successfully sued and collected a multimillion-dollar judgment for damages against individual gang members. One of the most significant efforts to curb gang activity was the gang ordinance adopted by the Chicago City Council in 1992. This local law authorized the police to order suspected gang members who, along with at least two other individuals, were “loitering” in public to vacate the area. Between 1992 and 1995, the police issued 89,000 orders to disperse and arrested more than 42,000 people for disobeying an order to move on. In City of Chicago v. Morales, the U.S. Supreme
Court considered the constitutionality of the ordinance. In reading the case, do you understand what type of behavior is prohibited under the ordinance? How do we balance the constitutional right of freedom of assembly against society’s interest in combating gangs? Do you think that this type of ordinance is an effective approach to preventing gangs from terrorizing neighborhoods?
Prostitution and Solicitation
Prostitution is defined as engaging in sexual intercourse or other sexual acts in exchange for money or other items of value. You undoubtedly have heard someone refer to prostitution as
“the world’s oldest profession.” Why is an activity that has been characteristic of both ancient and modern societies considered a crime? There are several reasons:
• Disease. Encourages transmission of infections such as AIDS.
• Family. Weakens marriage and the family.
• Exploitation. Exploits and degrades women.
• Immorality. Promotes social immorality and a culture tolerant of alcoholism, drug abuse, gambling, and acts of immorality.
Critics of laws punishing prostitution point out that the legitimacy of law enforcement is undermined by the fact that the police typically must resort to posing as “prostitutes” or
“customers” in order to enforce prostitution laws and that this lowers respect for law enforcement.
There is also an inconsistency in the fact that the police target street prostitutes while “call girls” who service the relatively wealthy are rarely arrested. Critics further note that despite the resources devoted to eliminating prostitution, the police have not been able to deter individuals from engaging in this activity. The argument is also made that categorizing prostitution as a crime insures that it will be controlled by organized crime and pimps (individuals who live off the proceeds of prostitution). This results in prostitutes being labeled as criminals, places them in danger, and deprives the government of tax revenues. Others argue that prostitution laws deprive women of the opportunity to utilize their bodies to advance their economic well-being. The most radical commentators point to the fact that prostitutes are no different than the large number of people who engage in sex with the intent of obtaining employment or material gain. Some favor decriminalization of prostitution and subjecting the practice to state regulation, the policy followed in the Netherlands. State regulation has the advantage of insuring that precautions are taken against the spread of HIV and other sexually transmitted diseases. A small number of commentators favor complete legalization.
Nevada is the only state in which prostitution is legal. Each of the smaller population counties in the state are free to determine whether to permit prostitution, and the practice is heavily regulated. Brothels must pay a licensing fee, and prostitutes are required to submit to monthly HIV tests. Condoms are required, and prostitutes must be at least twenty-one years old. Prostitution is not permitted anywhere other than in the brothels, and the brothels may not advertise in counties in which the practice is illegal. Nevada possesses roughly thirty legal brothels that employ roughly
300 prostitutes.
The Crime of Prostitution
Prostitution punishes both men and women who
• solicit or engage in
• any sexual activity
• in exchange for money or other consideration.
As you can see, prostitution is committed by exchanging sexual activity for money or other consideration or by solicitation for prostitution, asking or requesting another person to engage in prostitution. Note that it is the solicitation or actual exchange of money or value for sex that distinguishes prostitution from the legal act of approaching another person for consensual sexual activity. The crime of prostitution is not limited to sexual intercourse and encompasses all varieties of sexual interaction. Georgia’s prostitution law provides that a person
“commits the offense of prostitution when he or she performs or offers or consents to perform a sexual act, including but not limited to sexual intercourse or sodomy, for money or other items of value.”25
Pennsylvania follows the Model Penal Code by providing that a person is guilty of prostitution who “is an inmate of a house of prostitution or otherwise engages in sexual activity as a business.” An inmate is a person who engages in prostitution as a business in conjunction with a house of prostitution or as a “call girl,” who makes use of an agency to obtain clients.
An individual is guilty under this provision who engages in prostitution in affiliation with a house of prostitution. It is unnecessary to establish that the accused engaged in a specific act of prostitution.26
State statutes also commonly punish loitering for prostitution. California declares that it is “unlawful for any person to loiter in any public place with the intent to commit prostitution.”
An individual’s mens rea is demonstrated by acts that indicate an intent to induce, entice, or solicit prostitution. The California statute notes that this intent may be established by the stopping and soliciting of pedestrians or of the occupants of passing automobiles. This type of provision recognizes that public loitering for solicitation is an essential step in engaging in the business of prostitution and that solicitation negatively impacts a neighborhood’s sense of safety and stability.27
Prostitution statutes are gender neutral; prostitution may be committed by a male or female prostitute, and both prostitutes and customers may be guilty of soliciting or loitering for the purpose of prostitution. Several states explicitly punish a person who “hires a prostitute or any other person to engage in sexual activity . . . or if that person enters or remains in a house of prostitution for the purpose of engaging in sexual activity.” Pennsylvania also provides that convictions and sentences for a second and all subsequent acts of prostitution shall be published in the newspaper.28
Another prostitution-related offense is pimping, which involves procuring a prostitute for another individual, arranging a meeting for the purpose of prostitution, transporting an individual to a location for the purpose of prostitution, receiving money or other thing of value from a prostitute knowing that it was earned from prostitution, or owning, managing, or leasing a house of prostitution or prostitution business. Pandering is the encouraging and inducing of another to become or remain a prostitute; this is punished more harshly when duress or coercion is employed.29 Living off prostitution is committed by a person, other than a prostitute and the prostitute’s minor child or other dependent, who is “knowingly supported in whole or substantial part by the proceeds of prostitution.”30 Keeping a place of prostitution involves “keeping a place of prostitution when [an individual] knowingly grants or permits the use of such place for the purpose of prostitution.”31 Pimping, pandering, and keeping a place of prostitution are also generally encompassed under the crime of promoting prostitution, which involves aiding or abetting prostitution by “any means whatsoever.”32 States also have extended their laws to criminally punish a “masseur or masseuse” who commits the offense of masturbation for hire when he or she “stimulates the genital organs of another, whether resulting in orgasm or not, by manual or other bodily contact exclusive of sexual intercourse or by instrumental manipulation for money or the substantial equivalent thereof.”33
Prostitution is a misdemeanor. It is typically punished somewhat more severely for the third and subsequent offenses and is a felony in the event that an individual knew that he or she was infected with HIV. Georgia provides a sentence of between five and twenty years and a fine of up to $10,000 for keeping a place of prostitution, pimping, pandering, or solicitation involving an individual under eighteen years old.34
We should note in passing that there are several other misdemeanor sexual offenses that appear in various state statutes:
• Adultery. Consensual sexual intercourse between a male and a female, at least one of whom is married.
• Bigamy. Marrying another while already having a living spouse.
• Fornication. An unmarried person who engages in voluntary sexual intercourse with another individual.
• Lewdness. Public acts offending community standards, including the display of genitals, sexual intercourse, lewd sexual contact, and deviate sexual intercourse.
Legal Regulation of Prostitution
The difficulty of controlling prostitution through individual criminal prosecutions led the city of
Milwaukee, Wisconsin, to obtain a court order declaring that prostitutes in designated areas of the city constituted a nuisance. A Wisconsin appellate court found that the police had received a high volume of complaints concerning prostitutes on the streets and private property in this neighborhood.
The court further ruled that the enforcement of the laws against prostitution posed a danger to the police, who were forced to act undercover to apprehend prostitutes and that these officers were endangered by the fact that the prostitutes frequently carried sharpened objects, knives with long blades, and razors. The injunction issued by the court prohibited prostitutes from soliciting customers by stopping pedestrians and automobiles and from waiting at bus stops and pay phones and loitering in the doorways of businesses.35
The next case, Harwell v. State, illustrates the type of technical details that a court must examine to determine whether a defendant intentionally agreed to engage in sex for money.
Model Penal Code
Section 251.2. Prostitution and Related Offenses
(1) A person is guilty of prostitution, a petty misdemeanor, if he or she:
(a) is an inmate of a house of prostitution or otherwise engages in sexual activity as a business; or (b) loiters in or within view of any public place for the purpose of being hired to engage in sexual activity.
“Sexual activity” includes homosexual and other deviate sexual relations. A “house of prostitution” is any place where prostitution or promotion of prostitution is regularly carried on by one person under the control, management or supervision of another. An
“inmate” is a person who engages in prostitution in or through the agency of a house of prostitution. “Public place” means any place to which the public or any substantial group thereof has access.
(2) Promoting Prostitution. . . . The following acts shall . . . constitute promoting prostitution:
(a) owning, controlling, managing, supervising or otherwise keeping . . . a house of prostitution or prostitution business; or
(b) procuring an inmate for a house of prostitution or a place in a house of prostitution for one who would be an inmate; or
(c) encouraging, inducing, or otherwise purposely causing another to become or remain a prostitute; or
(d) soliciting a person to patronize a prostitute; or
(e) procuring a prostitute for a patron; or
(f) transporting a person into or within this state with the purpose to promote that person engaging in prostitution, or procuring or paying for transportation with that purpose; or (g) leasing or otherwise permitting a place controlled by the actor . . . to be regularly used for prostitution or the promotion of prostitution, or failure to make reasonable efforts to abate such use by ejecting the tenant, notifying law enforcement authorities, or other legally available means; or
(h) soliciting, receiving, or agreeing to receive any benefit for doing or agreeing to do anything forbidden by this Subsection.
(3) Grading of Offenses. An offense under Subsection (2) constitutes a felony of the third degree if:
(a) the offense falls within paragraph (a), (b) or (c) of Subsection (2); or
(b) the actor compels another to engage in or promote prostitution; or
(c) the actor promotes prostitution of a child under 16 . . . ; or
(d) the actor promotes prostitution of his wife, child, ward or any person for whose care, protection or support he is responsible. Otherwise the offense is a misdemeanor.
(4) Presumption From Living off Prostitutes. A person, other than the prostitute or the prostitute’s minor child or other legal dependent incapable of self-support, who is supported in whole or substantial part by the proceeds of prostitution is presumed to be knowingly promoting prostitution. . . .
(5) Patronizing Prostitutes. A person commits a violation if he hires a prostitute to engage in sexual activity with him, or if he enters or remains in a house of prostitution for the purpose of engaging in sexual activity.
(6) Evidence. On the issue whether a place is a house of prostitution the following shall be admissible evidence: its general repute; the repute of the persons who reside in or frequent the place; the frequency, timing and duration of visits by non-residents. Testimony of a person against his spouse shall be admissible to prove offenses under this Section.
Crimes against public order and morality are intended to insure that individuals walking on sidewalks, traveling on the streets, or enjoying the public parks and facilities are free from harassment, fear, threat, and alarm. This category of crime includes a large number of seemingly unrelated offenses that threaten the public peace, quiet, and tranquility. The challenge presented by these offenses is to balance public order and morals with the right of individuals to exercise their civil liberties. A prime example of a crime against public order is individual disorderly conduct. This broadly defined offense involves acts that create public inconvenience and annoyance by directly …show more content…
threatening individuals’ sense of physical safety. Disorderly conduct entails offenses ranging from intentionally blocking the sidewalk and acting in an abusive and threatening manner to discharging a firearm in public. Group disorderly conduct (riot) entails tumultuous or violent conduct by three or more persons.
The second category of crimes against public order and morals covered in this chapter includes offenses against the public order that threaten the order and stability of a neighborhood. We focus on two so-called quality-of-life crimes. At common law, vagrancy was defined as moving through the community with no visible means of support. Loitering at common law was defined as idly standing on the corner or sidewalk in a manner that causes people to feel a sense of threat or alarm for their safety. These broad vagrancy and loitering statutes historically have been employed to detain and keep “undesirables” off the streets. The U.S. Supreme Court in recent years has consistently found these laws void for vagueness and unconstitutional. The same constitutional arguments are being used today to challenge ordinances directed against the homeless and gangs. The last section of the chapter on crimes against public order and morals examines the overreach of the criminal law, or so-called victimless crimes. These are offenses against morality. The individuals who voluntarily engage in victimless crimes typically do not view their involvement as harmful to themselves or to others. We initially center our discussion of victimless crimes on prostitution and soliciting for prostitution. The next section on victimless crimes examines whether the prohibition on obscenity should be extended to violent video games that are thought to harm children or whether these games are protected under the First Amendment to the U.S. Constitution.
DISORDERLY CONDUCT
The common law punished a breach of the peace. This was defined as an act that disturbs or tends to disturb the tranquility of the citizenry. Blackstone notes that breaches of the peace included both acts that actually disrupted the social order, such as fighting in public, and what he terms constructive breaches of the peace or conduct that is reasonably likely to provoke or to excite others to disrupt social order. Blackstone cites as examples of constructive breaches of the peace both the circulation of material causing a person to be subjected to public ridicule or contempt and the issuing of a challenge to another person to fight. The common law crime of breach of the peace constituted the foundation for American state statutes punishing disorderly conduct. An example of a statutory definition of the misdemeanor of disorderly conduct is the Wisconsin law that punishes anyone who “in a public or private place, engages in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance.”2 Other statutes specify the conduct constituting disorderly conduct. The Illinois statute defines disorderly conduct as any act knowingly committed in an unreasonable manner so as to “alarm or disturb another and to provoke a breach of the peace.” The Illinois law then elaborates on this definition and lists specific acts that constitute a breach of the public peace, including a false fire alarm or false report of criminal activity to the police, a false report of an explosive device, a false report of child or elder abuse, and an annoying or intimidating telephone call made to collect a debt.3 The Arizona statute requires an act committed with a specific intent to disturb the peace or quiet of a neighborhood, family, or person or committed with the knowledge that it is disturbing the peace. The Arizona law lists fighting, unreasonable noise, use of abusive or offensive language to any person likely to cause retaliation, commotion intended to prevent a meeting or procession, refusal to obey a lawful order to disperse, or recklessly handling, displaying, or discharging a deadly weapon or dangerous instrument.
Model Penal Code
Section 250.2. Disorderly Conduct
(1) A person is guilty of disorderly conduct if, with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he engages in fighting or threatening, or in violent or tumultuous behavior; or
(b) makes unreasonable noise or offensively coarse utterances, gesture or display, or addresses abusive language to any person present; or
(c) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.
“Public” means affecting or likely to affect persons in a place to which the public or substantial group has access; among the places included are highways, transport facilities, schools, prisons, apartment houses, places of business or amusement, or any neighborhood.
(2) An offense under this section is a petty misdemeanor if the actor’s purpose is to cause substantial harm or serious inconvenience, or if he persists in disorderly conduct after reasonable warning or request to desist. Otherwise disorderly conduct is a violation to a fine.
Analysis
• The Model Penal Code limits disorderly conduct to specific acts likely to create what the code terms a public nuisance. The commentary notes that the proposed statute does not include conduct tending to corrupt or to annoy other individuals.
• The act must be committed with the purpose to cause public inconvenience, annoyance, or alarm or recklessly creating a risk thereof. Guilt cannot be based on the argument that an individual should have foreseen the risk of public annoyance or alarm; “nothing less than conscious disregard of a substantial and justifiable risk of public nuisance will suffice for liability. Conviction cannot be had merely on proof that the actor should have foreseen the risk of public annoyance or alarm.”
• Disorderly conduct is directed at disturbing the peace and quiet of the community. The code excludes family disputes within the home.
• The section limits imprisonment to circumstances in which an individual’s purpose is to cause significant harm or serious inconvenience or in which an individual continues the crime despite warnings or requests to halt.
• The Model Penal Code also includes specific sections on the abuse of a corpse; cruelty to animals; desecration of graves, monuments, and places of worship; disruption of meetings and processions; false public alarms; harassment; loitering or prowling; obstructing highways or other public passages and processions; public drunkenness; unlawful eavesdropping; surveillance; and breaching the privacy of messages.
Model Penal Code
Section 250.1. Riot; Failure to Disperse
(1) A person is guilty of riot, a felony of the third degree, if he participates with two or more others in a course of disorderly conduct:
(a) with purpose to commit or facilitate the commission of a felony or misdemeanor;
(b) with purpose to prevent or coerce official action; or
(c) when the actor or any other participant to the knowledge of the actor uses or plans to use a firearm or other deadly weapon.
(2) Where three or more persons are participating in a course of disorderly conduct likely to cause substantial harm or serious inconvenience, annoyance or alarm, a peace officer o other public servant engaged in executing or enforcing the law may order the participants and others in the immediate vicinity to disperse. A person who refuses or knowingly fails to obey such an order commits a misdemeanor.
Analysis
The Model Penal Code requires that an individual participate together with two or more other persons in a course of disorderly conduct with the required purpose or knowledge. It is not sufficient that an individual was present at the assembly or disturbance.
The Model Penal Code also punishes a failure to disperse.
What is the prosecution required to prove to convict a defendant of incitement to riot?
PUBLIC INDECENCIES: QUALITY-OF-LIFE CRIMES
Criminal law texts traditionally devote very little attention to public indecencies.
These offenses include public drunkenness, vagrancy, loitering, panhandling, graffiti, and urinating and sleeping in public. A significant number of arrests and prosecutions are devoted to these crimes against the quality of life, but for the most part, they receive limited attention because they are misdemeanors, are swiftly disposed of in summary trials before local judges, and disproportionately target young people, minorities, and individuals from lower socioeconomic backgrounds. In the 1980s, scholars began to argue that seemingly unimportant offenses against the public order and morals were key to understanding why some neighborhoods bred crime and hopelessness while other areas prospered. This so-called broken windows theory is identified with criminologists James Q. Wilson and George Kelling. Why the name broken windows? Wilson and Kelling argue that if one window in a building is broken and left unrepaired, this sends a signal that no one cares about the house and that soon every window will be broken. The same process of decay is at work in a neighborhood. A home is abandoned, weeds sprout, the windows are smashed, and graffiti is sprayed on the building. Rowdy teenagers, drunks, and drug addicts are drawn to the abandoned structure and surrounding street. Residents find themselves confronting panhandlers, drunks, and addicts and develop apprehension about walking down the street …show more content…
and flee the area as property values drop and businesses desert the community. The neighborhood now has reached a tipping point and is at risk of spiraling into a downward cycle of crime, prostitution, drugs, and gangs. The solution is to address small concerns before they develop into large-scale crimes. We can question, along with some researchers, whether small incidents of disorder inevitably lead to petty crime, then to serious offenses, and finally to neighborhood decay. Nevertheless, surveys indicate that most people are more concerned with the immediate threat to their quality of life posed by rowdy juveniles, drug dealers, prostitutes, and public drunkenness than they are with the more distant threats of rape, robbery, and murder. A central focus of the broken windows theory in cities where it has been adopted is combating Vagrancy and Loitering
Vagrancy is defined under the common law as wandering the streets with no apparent means of earning a living (without visible means of support).
Loitering is a related offense defined as standing in public with no apparent purpose. The early vagrancy statutes were passed in reaction to the end of the feudal system and required the vast army of individuals wandering the countryside to seek employment. These same laws were relied on during the labor shortage resulting from the Black Death in the fourteenth century to force individuals into the labor market. There was also the fear that these bands of men might loiter or gather together to engage in crime or
rebellion. Loitering or Prowling
A person commits a violation if he loiters or prowls in a place, at a time, or in a manner not usual for law-abiding individuals under circumstances that warrant alarm for the safety of persons or property in the vicinity. Among the circumstances which may be considered in determining whether such alarm is warranted is the fact that the actor takes flight upon appearance of a peace officer, refuses to identify himself, or manifestly endeavors to conceal himself or any object. Unless flight by the actor or other circumstance makes it impracticable, a peace officer shall prior to any arrest for an offense under this section afford the actor an opportunity to dispel any alarm which would otherwise be warranted, by requesting him to identify himself and explain his presence and conduct. No person shall be convicted of an offense under this Section if the peace officer did not comply with the preceding sentence, if it appears at trial that the explanation given by the actor was true and, if believed by the peace officer at the time, would have dispelled the alarm.
Homelessness
City and local governments have increasingly relied on municipal ordinances to stem the tide of a growing homeless population. The National Law Center on Homelessness and Poverty and the National Coalition for the Homeless issued a report in 2009 titled Homes Not Handcuffs: The
Criminalization of Homelessness in U.S. Cities that documents the increase and enforcement of laws prohibiting urban camping, sleeping in the parks and subways, aggressive panhandling, trespassing in areas under bridges and adjacent to parks, and blocking sidewalks. The report also finds laws against loitering, jaywalking, and open alcoholic containers. Several cities also prohibit charities, churches, and other organizations from serving food to the needy outside designated areas. The report concludes that these local ordinances have the effect of making it a crime to be homeless. The National Coalition for the Homeless singles out the ten “meanest cities” toward the homeless. These cities are Los Angeles, California; St. Petersburg, Florida; Orlando, Florida; Atlanta, Georgia; Gainesville, Florida; Kalamazoo, Michigan, San Francisco, California; Honolulu, Hawaii; Bradenton, Florida; and Berkeley, California.
Gangs
It is estimated that that there are roughly 21,000 gangs active in the United States with an estimated 700,000 gang members. Gangs are no longer limited to large urban areas and today are active in nearly every city, suburb, and rural area. These gangs are involved in criminal activity ranging from drugs and prostitution, to extortion and theft, and some have members throughout the United States as well as in Mexico and Central America. The Illinois legislature made several legislative “findings” concerning the peril posed by gangs.
• Urban, suburban, and rural communities are being “terrorized and plundered by street gangs.”
• Street gangs are often “controlled by criminally sophisticated adults” who manipulate or threaten young people into serving as drug couriers and into carrying out brutal crimes on behalf of the gang.
• Street gangs present a “clear and present danger to public order and safety.”
States have adopted various legal approaches to controlling gangs. Special gang statutes make it a crime to solicit, to cause any person to join, or to deter any person from leaving a gang, and enhanced punishment is provided for crimes committed to further the interests of gangs. Gang members have also been prosecuted under organized crime statutes, and laws also provide for the vicarious civil liability of parents for the conduct of their children. Various school districts prohibit the display of gang paraphernalia and colors, and some correctional systems provide rewards for gang members who leave the gang and cooperate with authorities. In 2009, the City of Los Angeles successfully sued and collected a multimillion-dollar judgment for damages against individual gang members. One of the most significant efforts to curb gang activity was the gang ordinance adopted by the Chicago City Council in 1992. This local law authorized the police to order suspected gang members who, along with at least two other individuals, were “loitering” in public to vacate the area. Between 1992 and 1995, the police issued 89,000 orders to disperse and arrested more than 42,000 people for disobeying an order to move on. In City of Chicago v. Morales, the U.S. Supreme
Court considered the constitutionality of the ordinance. In reading the case, do you understand what type of behavior is prohibited under the ordinance? How do we balance the constitutional right of freedom of assembly against society’s interest in combating gangs? Do you think that this type of ordinance is an effective approach to preventing gangs from terrorizing neighborhoods?
Prostitution and Solicitation
Prostitution is defined as engaging in sexual intercourse or other sexual acts in exchange for money or other items of value. You undoubtedly have heard someone refer to prostitution as
“the world’s oldest profession.” Why is an activity that has been characteristic of both ancient and modern societies considered a crime? There are several reasons:
• Disease. Encourages transmission of infections such as AIDS.
• Family. Weakens marriage and the family.
• Exploitation. Exploits and degrades women.
• Immorality. Promotes social immorality and a culture tolerant of alcoholism, drug abuse, gambling, and acts of immorality.
Critics of laws punishing prostitution point out that the legitimacy of law enforcement is undermined by the fact that the police typically must resort to posing as “prostitutes” or
“customers” in order to enforce prostitution laws and that this lowers respect for law enforcement.
There is also an inconsistency in the fact that the police target street prostitutes while “call girls” who service the relatively wealthy are rarely arrested. Critics further note that despite the resources devoted to eliminating prostitution, the police have not been able to deter individuals from engaging in this activity. The argument is also made that categorizing prostitution as a crime insures that it will be controlled by organized crime and pimps (individuals who live off the proceeds of prostitution). This results in prostitutes being labeled as criminals, places them in danger, and deprives the government of tax revenues. Others argue that prostitution laws deprive women of the opportunity to utilize their bodies to advance their economic well-being. The most radical commentators point to the fact that prostitutes are no different than the large number of people who engage in sex with the intent of obtaining employment or material gain. Some favor decriminalization of prostitution and subjecting the practice to state regulation, the policy followed in the Netherlands. State regulation has the advantage of insuring that precautions are taken against the spread of HIV and other sexually transmitted diseases. A small number of commentators favor complete legalization.
Nevada is the only state in which prostitution is legal. Each of the smaller population counties in the state are free to determine whether to permit prostitution, and the practice is heavily regulated. Brothels must pay a licensing fee, and prostitutes are required to submit to monthly HIV tests. Condoms are required, and prostitutes must be at least twenty-one years old. Prostitution is not permitted anywhere other than in the brothels, and the brothels may not advertise in counties in which the practice is illegal. Nevada possesses roughly thirty legal brothels that employ roughly
300 prostitutes.
The Crime of Prostitution
Prostitution punishes both men and women who
• solicit or engage in
• any sexual activity
• in exchange for money or other consideration.
As you can see, prostitution is committed by exchanging sexual activity for money or other consideration or by solicitation for prostitution, asking or requesting another person to engage in prostitution. Note that it is the solicitation or actual exchange of money or value for sex that distinguishes prostitution from the legal act of approaching another person for consensual sexual activity. The crime of prostitution is not limited to sexual intercourse and encompasses all varieties of sexual interaction. Georgia’s prostitution law provides that a person
“commits the offense of prostitution when he or she performs or offers or consents to perform a sexual act, including but not limited to sexual intercourse or sodomy, for money or other items of value.”25
Pennsylvania follows the Model Penal Code by providing that a person is guilty of prostitution who “is an inmate of a house of prostitution or otherwise engages in sexual activity as a business.” An inmate is a person who engages in prostitution as a business in conjunction with a house of prostitution or as a “call girl,” who makes use of an agency to obtain clients.
An individual is guilty under this provision who engages in prostitution in affiliation with a house of prostitution. It is unnecessary to establish that the accused engaged in a specific act of prostitution.26
State statutes also commonly punish loitering for prostitution. California declares that it is “unlawful for any person to loiter in any public place with the intent to commit prostitution.”
An individual’s mens rea is demonstrated by acts that indicate an intent to induce, entice, or solicit prostitution. The California statute notes that this intent may be established by the stopping and soliciting of pedestrians or of the occupants of passing automobiles. This type of provision recognizes that public loitering for solicitation is an essential step in engaging in the business of prostitution and that solicitation negatively impacts a neighborhood’s sense of safety and stability.27
Prostitution statutes are gender neutral; prostitution may be committed by a male or female prostitute, and both prostitutes and customers may be guilty of soliciting or loitering for the purpose of prostitution. Several states explicitly punish a person who “hires a prostitute or any other person to engage in sexual activity . . . or if that person enters or remains in a house of prostitution for the purpose of engaging in sexual activity.” Pennsylvania also provides that convictions and sentences for a second and all subsequent acts of prostitution shall be published in the newspaper.28
Another prostitution-related offense is pimping, which involves procuring a prostitute for another individual, arranging a meeting for the purpose of prostitution, transporting an individual to a location for the purpose of prostitution, receiving money or other thing of value from a prostitute knowing that it was earned from prostitution, or owning, managing, or leasing a house of prostitution or prostitution business. Pandering is the encouraging and inducing of another to become or remain a prostitute; this is punished more harshly when duress or coercion is employed.29 Living off prostitution is committed by a person, other than a prostitute and the prostitute’s minor child or other dependent, who is “knowingly supported in whole or substantial part by the proceeds of prostitution.”30 Keeping a place of prostitution involves “keeping a place of prostitution when [an individual] knowingly grants or permits the use of such place for the purpose of prostitution.”31 Pimping, pandering, and keeping a place of prostitution are also generally encompassed under the crime of promoting prostitution, which involves aiding or abetting prostitution by “any means whatsoever.”32 States also have extended their laws to criminally punish a “masseur or masseuse” who commits the offense of masturbation for hire when he or she “stimulates the genital organs of another, whether resulting in orgasm or not, by manual or other bodily contact exclusive of sexual intercourse or by instrumental manipulation for money or the substantial equivalent thereof.”33
Prostitution is a misdemeanor. It is typically punished somewhat more severely for the third and subsequent offenses and is a felony in the event that an individual knew that he or she was infected with HIV. Georgia provides a sentence of between five and twenty years and a fine of up to $10,000 for keeping a place of prostitution, pimping, pandering, or solicitation involving an individual under eighteen years old.34
We should note in passing that there are several other misdemeanor sexual offenses that appear in various state statutes:
• Adultery. Consensual sexual intercourse between a male and a female, at least one of whom is married.
• Bigamy. Marrying another while already having a living spouse.
• Fornication. An unmarried person who engages in voluntary sexual intercourse with another individual.
• Lewdness. Public acts offending community standards, including the display of genitals, sexual intercourse, lewd sexual contact, and deviate sexual intercourse.
Legal Regulation of Prostitution
The difficulty of controlling prostitution through individual criminal prosecutions led the city of
Milwaukee, Wisconsin, to obtain a court order declaring that prostitutes in designated areas of the city constituted a nuisance. A Wisconsin appellate court found that the police had received a high volume of complaints concerning prostitutes on the streets and private property in this neighborhood.
The court further ruled that the enforcement of the laws against prostitution posed a danger to the police, who were forced to act undercover to apprehend prostitutes and that these officers were endangered by the fact that the prostitutes frequently carried sharpened objects, knives with long blades, and razors. The injunction issued by the court prohibited prostitutes from soliciting customers by stopping pedestrians and automobiles and from waiting at bus stops and pay phones and loitering in the doorways of businesses.35
The next case, Harwell v. State, illustrates the type of technical details that a court must examine to determine whether a defendant intentionally agreed to engage in sex for money.
Model Penal Code
Section 251.2. Prostitution and Related Offenses
(1) A person is guilty of prostitution, a petty misdemeanor, if he or she:
(a) is an inmate of a house of prostitution or otherwise engages in sexual activity as a business; or (b) loiters in or within view of any public place for the purpose of being hired to engage in sexual activity.
“Sexual activity” includes homosexual and other deviate sexual relations. A “house of prostitution” is any place where prostitution or promotion of prostitution is regularly carried on by one person under the control, management or supervision of another. An
“inmate” is a person who engages in prostitution in or through the agency of a house of prostitution. “Public place” means any place to which the public or any substantial group thereof has access.
(2) Promoting Prostitution. . . . The following acts shall . . . constitute promoting prostitution:
(a) owning, controlling, managing, supervising or otherwise keeping . . . a house of prostitution or prostitution business; or
(b) procuring an inmate for a house of prostitution or a place in a house of prostitution for one who would be an inmate; or
(c) encouraging, inducing, or otherwise purposely causing another to become or remain a prostitute; or
(d) soliciting a person to patronize a prostitute; or
(e) procuring a prostitute for a patron; or
(f) transporting a person into or within this state with the purpose to promote that person engaging in prostitution, or procuring or paying for transportation with that purpose; or (g) leasing or otherwise permitting a place controlled by the actor . . . to be regularly used for prostitution or the promotion of prostitution, or failure to make reasonable efforts to abate such use by ejecting the tenant, notifying law enforcement authorities, or other legally available means; or
(h) soliciting, receiving, or agreeing to receive any benefit for doing or agreeing to do anything forbidden by this Subsection.
(3) Grading of Offenses. An offense under Subsection (2) constitutes a felony of the third degree if:
(a) the offense falls within paragraph (a), (b) or (c) of Subsection (2); or
(b) the actor compels another to engage in or promote prostitution; or
(c) the actor promotes prostitution of a child under 16 . . . ; or
(d) the actor promotes prostitution of his wife, child, ward or any person for whose care, protection or support he is responsible. Otherwise the offense is a misdemeanor.
(4) Presumption From Living off Prostitutes. A person, other than the prostitute or the prostitute’s minor child or other legal dependent incapable of self-support, who is supported in whole or substantial part by the proceeds of prostitution is presumed to be knowingly promoting prostitution. . . .
(5) Patronizing Prostitutes. A person commits a violation if he hires a prostitute to engage in sexual activity with him, or if he enters or remains in a house of prostitution for the purpose of engaging in sexual activity.
(6) Evidence. On the issue whether a place is a house of prostitution the following shall be admissible evidence: its general repute; the repute of the persons who reside in or frequent the place; the frequency, timing and duration of visits by non-residents. Testimony of a person against his spouse shall be admissible to prove offenses under this Section.