Missouri- When a group of men go on trial this month in Missouri on charges of having sex in an adult video store, the investigating police officers will testify as usual.
This time, however, the same officers will say they were also victims of the crime.
The case started when Jefferson County police arrested six men in an undercover operation at the former Award Video on Aug. 13, 2002, in Fenton, 20 miles from St. Louis, on charges of performing sex acts in closed video viewing rooms.
The men were initially charged with first-degree sexual misconduct, which prohibited “deviate sexual intercourse with another person of the same sex,” and with having sex in a public place. But after the U.S. Supreme Court declared the sodomy laws in Texas unconstitutional, voiding the first-degree charges, prosecutors amended the charges to just public sexual contact – a crime that is defined by its offended victims.
The complaining witnesses, however, were neither customers nor neighbors, but police officers. As the sole third party to the crime, local police have been thrust into the dual role of investigator and victim.
According to the criminal complaint, the men had sexual contact in the presence of an offended third party – the detectives – knowing that their behavior would most likely cause “affront or alarm.”
Defense attorney Richard Sindel, however, contends the officers were not victims.
What sets them apart from other alleged victims of public sex or indecent exposure, he said, is that the offended police officers went to the store looking for the sexual conduct and therefore could not be alarmed.
Before going into the rooms, customers have to register for a membership, pay a fee and pass through a secure door before choosing between theaters for singles or couples, he said.
“It’s pretty hard after going through that process to say ‘I was shocked’,” Sindel said.
Jefferson County assistant prosecutor Jeffrey Coleman argues that the alleged public disturbance is based on the standard of a reasonable person.
Many people might feel discomforted by live public sex acts, even if they planned to watch explicit sex videos, Coleman said.
“You expect to see pornography, but do you expect to see pornography in person?” he said.
The defense argument that the officers cannot be victims because they were investigating the same disturbance they later complained about is unfair because its strips them of their rights as citizens, Coleman said.
He said his argument is backed by a 1909 case in De Soto, Mo., in which an officer testified as a victim of a man screaming profanities on the street. The man was later convicted.
“The common belief is that police officers can’t have their peace disturbed because they are police officers,” Coleman said. “If you investigate a robbery and then you get shot at, are you not a victim as well as an investigating officer?”
Police officers can be victims, but it may be difficult for prosecutors to convince a judge and jury that these officers were truly affronted by the behavior, said Stephen Easton, associate professor of criminal law at the University of Missouri-Columbia.
“These do seem like fairly unusual circumstances. The statute is written to ban a sex act in public that offends someone,” Easton said. “I think it’s more of a stretch to this set of allegations than people having sex outside in the morning.”
Five of the defendants are scheduled to stand trial on Nov. 29 and Dec. 1.
If the cases make it to juries, police officers will be called to testify about the investigation and arrest in addition to their reactions as victims.
A woman accused of performing oral sex on some of the men was recently convicted by a judge and sentenced to two years of probation.
“They’re going to play the role [at trial],” Sindel said. “They’re not going to come in and say, ‘This didn’t shock me.'”
Noting the “fun” the defense may have in cross-examining the officers, Easton said prosecutors face a risk of what he calls a “jury pardon” – excusing defendants despite a jury’s belief that a statute was violated.
Easton pointed out that jurors could say, “Why are we wasting all this time and effort even if it is a violation of a statute?”
Authorities typically do not have to list police as victims because a victim is not even necessary to prosecute a person for public sex. But Missouri’s law specifically pointed to an intent to offend.
“What’s unusual here is that in most states, that it’s public makes it illegal. You don’t have that added burden,” said Wisconsin district attorney Michael McCann, who formerly chaired the criminal justice section of the American Bar Association.
An officer investigating a disturbance can also be a victim, McCann said. He compared the situation to sting operations where police pose as customers for drug dealers or prostitutes.
“The fact that you’re not surprised does not mean you aren’t affronted,” McCann said.
In response to the case, the state legislature recently passed legislation to make it easier to prosecute public sex cases. The law, which took effect Aug. 28, makes it a crime for anyone to engage in sexual activity in front of another person regardless of whether anyone is offended.