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 [...]