May an Undercover Officer Engage in Sexual Activity with a Suspected Prostitute?

I read a news article some time ago about officers who investigate suspected prostitutes by going undercover and purchasing their services. The article noted that this practice is controversial. Some agencies apparently don’t allow it, deeming it unnecessary and dehumanizing; others allow brief sexual contact but then require the officer to desist; and still others allow officers to engage in extended sexual contact. Similar issues arise when officers use informants to procure sexual services. A premise of the article was that there is no legal impediment to such practices, but the actual legal landscape is more mixed. This post provides more nuance.

Older cases. This issue has arisen in a number of cases over the years. Older cases consistently allowed this sort of investigative technique. See, e.g., Anchorage v. Flanagan, 649 P.2d 957 (Alaska Ct. App. 1982) (officer allowed defendant to stroke his penis briefly before arresting her; although this conduct “might be considered questionable,” it was not entrapment and did not rise to the level of a due process violation); State v. Tookes, 699 P.2d 983 (Haw. 1985) (a “civilian volunteer” was paid by police to have sex with prostitutes; this did not constitute outrageous government conduct); State v. Putnam, 639 P.2d 858 (Wash. Ct. App. 1982) (finding no legal problem where officers enlisted a female civilian volunteer to engage in acts of prostitution at their behest at two locations suspected of being “fronts” for prostitution).

Two more recent cases find “outrageous government conduct.” The defense of outrageous government conduct in violation of the Due Process Clause probably deserves its own post. For now, suffice it to say that it is a cousin to entrapment but focused purely on bad behavior by investigators (regardless of the defendant’s criminal predisposition or lack thereof). The defense is extremely rare, yet two relatively recent cases have found that when officers or informants engage in sexual activity with a suspected prostitute, the defense applies:

• Com. v. Sun Cha Chon, 983 A.2d 784 (Pa. Super. Ct. 2009) (affirming lower court’s dismissal of prostitution charges based on outrageous government conduct where investigators sent a civilian informant into a spa four times to engage in sexual contact with employees and laughed about the situation afterwards; the court deemed the investigation “embarrassing” and stated that it “violates principles of fundamental fairness.”)
• State v. Burkland, 775 N.W.2d 372 (Minn. Ct. App. 2009) (“A police officer investigating prostitution engages in outrageous government conduct that violates a defendant’s constitutional right to due process when the officer initiates sexual contact by fondling the breasts of the target of the investigation and permits the escalation of that sexual contact by allowing the target to rub the officer’s penis while he continues to fondle her bare breasts.”)

Citing these cases, a 2024 report by the United States Department of Justice into the Police Department in Worcester, Massachusetts, took the position that the agency “engaged in a pattern or practice of outrageous government conduct during undercover operations by allowing officers to engage in sexual contact with women suspected of being involved in the commercial sex trade.”  Several states have considered legislation that would limit or prohibit sexual contact during investigations. For example, Illinois just enacted Public Act 103-1071, which provides in part that “Each law enforcement agency shall create a policy on or before July 1, 2025 that prohibits law enforcement officers from knowingly and willingly performing an act of sexual penetration with the suspect of a criminal investigation of prostitution during the course of an investigation conducted by that officer.”

No North Carolina case. I couldn’t find a North Carolina appellate case on point. If anyone is aware of one, please let me know.

Not necessary to procure sufficient evidence. Opponents of the practice in question often point out that it is sufficient for a prostitute to offer or agree to perform sex acts for money; the acts need not be performed. See G.S. 14-203(5) (defining prostitution to include offering or agreeing); State v. Bethea, 9 N.C. App. 544 (1970) (finding sufficient evidence of prostitution where the defendant “offered to have sexual intercourse with J. R. Minnick for $15.00”).

Agency policy may address such conduct. I looked at a few North Carolina law enforcement agency policy manuals online, and didn’t see any that addressed this type of conduct directly. However, some agencies do address it, as reflected in this CBS News piece about officers in Lewisville, Texas who were disciplined as a result of their conduct during an investigation of massage parlors. And some agencies that don’t address it specifically may nonetheless take the position that it is prohibited by more general policies. See Breiner v. City of Beaumont, 2013 WL 775421 (E.D. Tex. Jan. 25, 2013) (an officer who engaged in sexual contact with prostitutes during an investigation was disciplined by his agency, which found his conduct to be “unprofessional,” “not necessary,” and outside of “moral standards”; he sued, and a federal magistrate judge recommended – and the district court subsequently ruled – that there was no merit in the suit and that summary judgment should be granted to the defendants).

Secondary sources. Although there is not a wealth of case law in this area, there are quite a few secondary sources addressing this topic. The most comprehensive one that I encountered was Mary Felder, Comment, Outrageous Government (Mis)conduct: Due Process as a Defense in Paid-Sex Sting Operations, 169 U. Pa. L. Rev. 539 (2021) (collecting cases both ways and arguing that officers or informants who engage in sexual contact during prostitution sting operations commit outrageous government conduct in violation of the Due Process Clause).

I also found some benefit in Paula Del Valle Torres, Comment, Sexual Contact Between a Suspect and Police Officers: How Far Should Police Go to Prove Prostitution?, 28 Am. U. J. Gender Soc. Pol’y & L. 471 (2020) (arguing that sexual contact between an officer and a suspected prostitute “violate[s] a suspected prostitute’s right to bodily autonomy by attaining sexual contact through fraudulent means”).

Comment. Society’s view of prostitution is changing. Sex workers are often seen as victims of circumstance, or of human trafficking. Investigations are more likely than before to focus on customers rather than on prostitutes. Therefore, it may not be surprising that some courts have begun to look differently at investigations that involve officers having sexual contact with suspected prostitutes. Even absent controlling case law in this area, officers and agency attorneys may be well-advised to approach such investigations carefully and to develop protocols designed to minimize or eliminate sexual contact while preserving the dignity of prostitution suspects.

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