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12/12/77 COMMONWEALTH v. DIANE KING (AND SIX

December 12, 1977

COMMONWEALTH
v.
DIANE KING (AND SIX COMPANION CASES) *FN1



Suffolk.

Hennessey, C.j., Quirico, Braucher, Kaplan, Wilkins, Liacos, & Abrams, JJ. Hennessey, C.j., Concurring.

SYLLABUS BY THE COURT

Prostitution. Common Night Walker. Constitutional Law, Privacy, Equal protection of laws. Due Process of Law, Vagueness of statute. Words, "Prostitute," "Common night walker."

The opinion of the court was delivered by: Hennessey

The term "prostitute" in G. L. c. 272, § 53, as construed to mean one who permits common indiscriminate sexual activity for hire, is not unconstitutionally vague. [11-13]

The term "common night walkers" in G. L. c. 272, § 53, as construed to mean persons abroad at night who solicit others to illicit sexual acts, is not unconstitutionally vague. [13-14]

General Laws c. 272, § 53, as applied to defendants who, in a public place, indiscriminately solicited or agreed to perform sexual acts for hire was not facially unconstitutional as impinging on their right to privacy. [14]

General Laws c. 272, § 53, applies to both male and female prostitutes, and, as so construed, does not violate the equal protection provisions of the Massachusetts Constitution. [15-17]

Defendants who were charged with prostitution under G. L. c. 272, § 53, were not denied equal protection of the laws by the fact that their male customers were not also liable for punishment under the statute. [17-19]

The failure of law enforcement officials to prosecute the male customers of prostitutes did not constitute discriminatory enforcement of the provisions of G. L. c. 272, § 53, on the basis of sex. [19-22]

There was nothing in the records of the trials of two female defendants for violations of G. L. c. 272, § 53, to support their claim of unlawful discrimination in the consistent failure of police to prosecute male prostitutes. [18]

At the trial of a female defendant for prostitution under the provisions of G. L. c. 272, § 53, dismissal of the complaint on the ground that the defendant was denied equal protection of the laws was not required by evidence that the arresting officer had never arrested a male prostitute and his testimony that it was the policy of the vice squad to arrest only female prostitutes where the defendant failed to establish that other criminal statutes were not employed to punish male conduct equivalent to prostitution. [18-19]

A female charged with prostitution or night walking under G. L. c. 272, § 53, would be entitled to a dismissal of the charges on an appropriate showing that the police department or prosecutor's office followed an unjustifiable policy of selective enforcement against female prostitutes and not male prostitutes. [22]

Complaints received and sworn to in the Municipal Court of the City of Boston on April 2, 1975, May 28, 1975, June 21, 1975, July 18, 1975, July 23, 1975, and November 14, 1975.

On appeal to the Superior Court, the cases were heard by Steele, J., a District Court Judge sitting under statutory authority.

Complaint received and sworn to in the Municipal Court of the Roxbury District on July 19, 1977.

On appeal to the Superior Court, the case was heard by Morrissey, J., a Judge of the Municipal Court of the City of Boston sitting under statutory authority.

After review was sought in the Appeals Court, the Supreme Judicial Court, on its own initiative, ordered direct appellate review.

We have before us a broad scale attack on the Massachusetts law against prostitution. The defendants, Rebecca Jones, Barbara Astrofsky, and Diane King, all were convicted for violations of G. L. c. 272, § 53. Jones and Astrofsky were convicted in a Municipal Court, appealed, and then were tried and convicted by a Judge in the Superior Court on complaints of prostitution. King, after appealing her Municipal Court convictions, was tried and convicted by Judges in the Superior Court on three complaints of prostitution and two complaints of common night walking, all pursuant to § 53. Fines and thirty-day suspended sentences, with periods of probation, were imposed in all cases except one case against King, wherein a six-month sentence was imposed.

In each of the seven cases below, before conviction in the Superior Court, the defendant filed motions to dismiss the complaint and for the entry of a finding of not guilty on the complaint, alleging that c. 272, § 53, is unconstitutional on its face and as applied to the defendant in that case. The Judge in each case denied both motions, and the defendant in each case took exceptions to the denial of her motions. Because the motions and exceptions in all the cases raise common issues, the defendants consolidated their cases for the purposes of appeal. *fn2 This court took jurisdiction of the consolidated appeal which is before us on bills of exceptions. Execution of the defendants' sentences was stayed pending appeal. We find no error and overrule the exceptions in all cases.

The facts underlying each conviction can be summarized as follows.

Jones.

In July, 1975, Officer McNelley of the Boston police department telephoned Jones, informing her that he had obtained her name from a male friend. When she said she could not remember this person, they arranged an appointment for the same afternoon. At that meeting, Jones informed Officer McNelley that she would perform various sexual acts with him for $50. He then arrested her and filed a complaint that "Rebecca Jones . . ., a female, was a prostitute offering her body to indiscriminate intercourse with men for hire." Officer McNelley testified that he has never brought a similar complaint against a man and that it is the practice of the vice squad division of the Boston police department to file such complaints against only females.

Astrofsky.

In November, 1975, Officer Flemming of the Boston police department observed Astrofsky with another woman in a hotel bar being approached by men. He engaged them in conversation. According to his testimony, her companion asked him, in Astrofsky's absence, whether he "was interested in going out for $75.00 each." She informed Astrofsky of his interest in "going out" for this price, and Astrofsky volunteered the information that fellatio and sexual intercourse would be included. Officer Flemming then arrested both women. He filed a ...


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