Complicity

As a Chicago television station reported a little over a month ago, for two years the Cook County Sheriff’s office has been targeting the use of Craigslist to facilitate prostitution.

According to the story, prostitutes advertise in the “erotic services” section of Craigslist. It says officers from the Sheriff’s Office have conducted four online prostitution stings in the last year and a half and made dozens of arrests. They arrested 76 people in their last sting, in June.

The story quotes Cook County Sheriff Tom Dart as saying “repeated attempts” to get Craigslist to shut down the “erotic services” section of its site have failed. It also reports that his office is “looking into legal action” against Craigslist, such as a “criminal or civil lawsuit.”

I don’t do civil litigation, so I have no interest in talking about that possibility. I suspect the more likely possibility is some kind of criminal prosecution, but that, of course, raises a very basic question: prosecute Craigslist for WHAT?

Let’s parse the possibilities. We begin with the obvious fact that prostitution itself is a crime in Illinois. An Illinois statute says that anyone who “performs, offers or agrees to perform any act of sexual penetration . . . or any. . . fondling of the sex organs of . . . another person, for any money, property . . . anything of value, for the purpose of sexual arousal or gratification commits an act of prostitution.” 720 Illinois Compiled Statutes Annotated § 5/11-14. Under the statute, the first conviction is a misdemeanor, while all subsequent convictions are a minor felony.

I can see two ways for the state of Illinois to bring a criminal prosecution against sites like Craigslist that provide information about prostitutes. The first is the traditional way: prosecute them for soliciting prostitution.

An Illinois statute says anyone “who performs any of the following acts commits soliciting for a prostitute:” (i) Solicits another for the purpose of prostitution; (ii) arranges or offers to arrange a meeting of persons for the purpose of prostitution; or (iii) directs another to a place knowing such direction is for the purpose of prostitution.” 720 Illinois Compiled Statutes Annotated § 5/11-15.

I don’t think sites like Craigslist could be charged under this statute because while the advertisements they carry may help prostitutes hook up with their customers, the intent – the mens rea – is missing. To violate this statute, you have to (i) purposely solicit (i.e., try to get someone interested in) an act of prostitution or (ii) purposely arrange a meeting for a prostitute or (iii) send someone to a place knowing you’re doing so to facilitate prostitution. I don’t see how any of that can apply to a site like Craigslist. According to their fact sheet, they get more than 30,000,000 new ads each months. There’s no way they could police the content of all that, even if they wanted to. There’s certainly no way a prosecutor could show that Craigslist carried a particular ad for one of the purposes noted above, i.e., acting with what the law calls the specific intent to solicit an act of prostitution.

The other way the state of Illinois might be able to prosecute sites like Craigslist for providing information about prostitutes is to use complicity, or aiding and abetting a crime. I talked about aiding and abetting in an earlier post, so if you’re interested in reading more about how it works, you might check that post.

Essentially, complicity is a principle that says someone who purposely facilitates the commission of a crime is as guilty as the person who actually carries out the crime (the principal). So if I know you are going to rob a bank and you ask me to get you a gun for the robbery and I do that, I’ve aided and abetted your crime . . . have, as the law says, become you accomplice. I can be held liable for the robbery as if I committed it. Aiding and abetting liability is a way of ratcheting up the stakes for those who might assist in the commission of a crime; it makes it very risky for someone to do that. You might as well commit the crime yourself, because if you’re caught you’ll face the same penalty as the perpetrator, absent your cutting a deal with the prosecutor.

Here’s what Illinois law requires to establish complicity in a crime:

[Complicity] requires a showing that the offender intended to promote or facilitate the commission of a crime, and . . . such intent is usually proven by showing that the accomplice shared a community of purpose or common design with the principal. . . . . The principal attribute of accountability is the showing of affirmative conduct by an accomplice that in some way aids, encourages or incites another to commit a crime.

People v. Peterson, 273 Ill. App.3d 412, 652 N.#.2d 1252 (Illinois Court of Appeals 1995).

Prosecutors sometimes go after legitimate businesses for aiding and abetting a crime. About fifteen years ago, there was a California fellow who owned a store that sold chemicals. He realized three particular chemicals could be used to make methamphetamine; he also realized he could make a lot of money selling those chemicals to people who made methamphetamine. So he pretty much turned his store into a store selling those three chemicals for cash to people whose names he either didn’t bother to get or that were transparent aliases. He was prosecuted for aiding and abetting the manufacture of methamphetamine. To show he was complicit in that crime, the prosecution proved that (i) he knew the three chemicals in combination could only be used to make methamphetamine and (ii) the sale of those chemicals accounted for the vast majority of his profits. From those facts, and the related facts that he dealt in cash, kept no customer records and deliberately did not know who his customers were, the prosecutors asked the jury to infer that he “shared a community of purpose” with the meth manufacturers, and so was complicit in what they did. The jury bought it and he was convicted.

The problem with trying to extrapolate that theory to what Craigslist is doing with its “erotic services” ads is showing that Craigslist shares such a “community of purpose,” i.e., that its purpose is to promote prostitution. In that regard, my hypothesized effort to charge Craigslist as an accomplice of prostitutes using its website reminds me of an old California case: People v. Lauria, 251 Cal. App.2d 471, 59 Cal. Rptr. 628 (California Court of Appeals 1967).

The defendant in that case operated a telephone answering service, which was very useful in a pre-cell phone, pre-pager era. My impression is that they were used by lots of people. Lauria’s service was in Los Angeles, so it was probably used a lot by would-be movie people, among others. For some reason, a policewoman decided to do a sting on his service: She signed up for the service, dropping hints that she was going to use it for prostitution and saying she had been referred by Terry, a prostitute known to use the service. The policewoman met with Lauria and dropped hints about needing customers, but the court’s opinion says he didn’t take the bait. All he said was that his “business was taking messages.” People v. Lauria, supra.

Lauria winds up being arrested, along with three prostitutes. He’s charged with aiding and abetting prostitution. He argued that the charge

was undeserved, stating that Hollywood Call Board had 60 to 70 prostitutes on its board while his own service had only 9 or 10, that he kept separate records for known or suspected prostitutes for the convenience of . . . the police. When asked if his records were available to police . . . to investigate call girls, Lauria replied that they were whenever the police had a specific name. However, his service didn't ‘arbitrarily tell the police about prostitutes on our board. As long as they pay their bills we tolerate them.’ In a . . . voluntary appearance before the Grand Jury Lauria testified he had always cooperated with the police. But he admitted he knew some of his customers were prostitutes, and he knew Terry was a prostitute because he had personally used her services, and he knew she was paying for 500 calls a month.

People v. Lauria, supra.

Lauria got the trial court to dismiss the charges against him, but the prosecution appealed. The California Court of Appeals agreed with the lower court:

When we review Lauria's activities . . ., we find no proof that Lauria took any direct action to further, encourage, or direct the call-girl activities of his codefendants and we find an absence of circumstances from which his special interest in their activities could be inferred. Neither excessive charges for standardized services, nor the furnishing of services without a legitimate use, nor an unusual quantity of business with call girls, are present. . . . Under these circumstances, . . . there was insufficient evidence that he intended to further their criminal activities, and hence insufficient proof of his [intent to aid and abet prostitution].

People v. Lauria, supra.

Craigslist is in essentially the same situation, though its relationship with the prostitutes who use its service is complicated by the vastness of the ads listed on its site. Lauria knew prostitutes were using his service, and probably knew who most of them were because his client base was tiny, compared to the number of people Craigslist deals with. I do not see how Craigslist could be charged as an accomplice to prostitution carried out by those who happen to put ads on its service. Absent complicity, I don’t see any other basis for bringing criminal charges again the site.