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Men don’t have to agree to sex in order to get busted in a prostitution sting. They just have to seem interested.

Wednesday, Jun 16 2010

It was 6:30 on a May evening, and the friends were on their way to church. The two men, aged 19 and 20, had come from El Salvador six months before. They were taking English classes, but neither of them spoke much English yet. Before the evangelical service, they said, they were planning to stop at the younger man's house in a residential area not far from Mission and 21st streets.

But just half a block from their destination was a corner, and on that corner a woman was waiting. She was pretty, in an unflashy way, in a short skirt and puffy jacket, her eyes hidden behind sunglasses. She didn't look much like a prostitute. But there seemed to be no reason for her to be standing on that deserted street, her back against a building, smoking a cigarette. A man passed without giving her a glance. She blew out a long plume of smoke.

She had only been out on the corner for 15 minutes when the two friends walked toward her.

"She spoke to us. She said, 'Hi, how are you?' And then we said, 'Hi, fine, and you?' And she said, 'Good,'" the younger man recalled in an interview conducted in Spanish. "For the little we understood, we were speaking back in English."

They would later call what was happening an "ambush."

Across the street, police officers in an unmarked car watched the interaction. They couldn't hear the conversation, but they knew what was coming next. The woman was going to ask the men if they wanted sex. She spoke to them in English, but they got the gist of her message. Sex. $50.

After a minute, the police officers saw the 19-year-old keep walking toward his house. The two men had been clear, the younger man said later: They weren't interested. But his friend lingered, talking with the woman who had offered sex. He claimed that he and his friend asked her only one direct question: how old she was. She said she was 21, but he didn't believe it. She looked at least 25.

The 19-year-old hung back, waiting for his friend. After a few minutes, the 20-year-old walked on.

But as the two men moved down the block, the woman gave the police officers the signal they had been waiting for. Their car zoomed in front of the men and pulled to a stop, blocking their way. Two police officers jumped out. Two more appeared from down the street. "Spread your legs!" one barked. They made the men stand, spread-eagled, while they patted them down and then snapped on handcuffs. The woman from the corner, Officer Jennifer Dickson, hopped into the front seat of the unmarked car to prepare a police report. She had captured the entire conversation on a hidden tape recorder.

Both men would be cited for loitering with the intent to engage in solicitation. According to the police, neither of them had demonstrated their immediate willingness to pay for sex, the legal definition of solicitation. But that didn't matter. They had talked to a cop who was posing as a prostitute. They had heard her prices, and, according to the police, had shown some interest. That was enough to get them arrested. Now they would be drawn into a legal system that would give them a choice: pay a hefty fee to attend the "John School," a re-education program, or risk a misdemeanor conviction, which meant a permanent black mark on their records.

As he was led away in handcuffs to the booking area, the older man was grinning, as if the whole situation were too absurd to take seriously.

In San Francisco, where 41 percent of voters approved a measure that would have essentially decriminalized prostitution and where a sex worker is currently running for the Board of Supervisors, men are regularly arrested just for talking to undercover cops posing as streetwalkers. If a man avoids eye contact and walks on by, he's fine. But if he shows any interest, the decoy will approach him. By the time he knows she is selling sex, he's headed for trouble. After that, any expression of interest — even a sarcastic "Oops, don't have enough cash, guess I'll come back later" — is enough to land him in handcuffs.

The loitering arrests are part of the First Offender Prostitution Program (FOPP), which mandates eight decoy operations a month, all targeted at men who buy sex from women. The joint effort among the police, the District Attorney's office, and Standing Against Global Exploitation (SAGE), a nonprofit founded by a former sex worker, allows first-time offenders to take a class about the dark side of the sex trade instead of entering the criminal justice system. A study funded by the Department of Justice found the program effective in reducing recidivism; it has been copied in dozens of cities across the U.S.

A decade ago, almost all the men arrested in the program's stings had shown more than interest; they had agreed to sex acts for money, according to statistics from the District Attorney's office. But in recent years, as would-be johns have gotten savvy to police tactics, roughly a third of those arrested in the stings — between 100 and 200 a year — were cited simply for demonstrating, in the eyes of the police, that they had "an intent to commit prostitution." According to the California penal code, there's no "single circumstance or combination of circumstances" that proves this intent; it has to be determined case by case.

Law professors say that the loitering statute is dangerously vague. In a group of cities surveyed, San Francisco was the only one in which men are regularly arrested for loitering. Police officers in charge of prostitution stings elsewhere say they would not consider a loitering arrest in some of the circumstances in which San Francisco police make arrests on a weekly basis.

Because 60 percent of the men arrested for loitering are Latino, San Francisco's public defender, Jeff Adachi, said the issue raises "grave concerns" about possible discrimination, and that his office will investigate the situation.

The risk in using the loitering charge, lawyers say, is that the police may be arresting men who have no serious intent to engage in solicitation, and who pose no risk of future criminality.

The Salvadoran men who were cited for loitering were released with tickets, requiring a June 30 court date and a potential fine of $682 each. Neither of them had any sense of their legal options, or how they would defend themselves given their limited English.

"I'm going to fight it," the 20-year-old said in Spanish. He said he did not want his name printed because of the shame associated with a solicitation charge. "If it were something I did, I would be like, 'Fine.' But we haven't done anything."

It's still daylight when the unmarked car rolls out of the Hall of Justice parking lot. It's headed toward an area of the Mission where, police officers say, men often stop for sex on their way home from work. Later, the action will shift to the upper Polk Street area, as bars get busy and then empty out for the night.

Inspector Steve Ravella is at the wheel. He's a no-nonsense guy, with a scrupulous attitude and a lurking sense of humor. As he drives, he runs through the problems associated with prostitution: used condoms discarded in the street, violent pimps, johns who get robbed. He doesn't make moral arguments. Later, he will drily mention a high-prostitution area near a Mission District elementary school, where the police would catch men hoping to get a quick blow job before collecting their kids.

Prostitution stings are expensive and labor-intensive. Targeting men, the so-called johns, is a political choice as well as a practical one. "Behind every person out there selling his or her body there is a person" with a troubled history, Police Chief George Gascón said at a community meeting in January. Whether or not all sex workers would agree with this, it is the city's prevailing orthodoxy: Prostitutes are victims forced into sex work by some kind of exploitation. The ultimate goal is to rehabilitate both prostitutes and johns, Gascón said, but other kinds of enforcement must be in place for "people beyond help."

Pimps are described by many police officers as the real criminals, but they're also the hardest to catch. In recent years, as pimps have become savvier about police tactics, it has become very hard to successfully complete a pimp case. The police arrest prostitutes regularly, but they usually end up right back on the street. As a result, enforcement here often focuses on the demand side of the industry: the johns.

The goal here is education, not shaming. The officers who conduct the stings are surprisingly nonjudgmental about the men they arrest, actually going out of their way to reassure them. "If you comply, if you don't have a warrant, you can probably get a ticket and be on your way," Ravella will call out as he moves in on one john. He says the FOPP coordinator who processes the files at the DA's office will offer to call men at alternate phone numbers, or mail their forms somewhere besides their home addresses. The system makes it clear to the johns that their wives or girlfriends may never have to find out. Even the decoys, who often see men old enough to be their grandfathers offer to pay for sex, tend to view their interactions with johns sympathetically. Her job doesn't make her cynical, Dickson says: "This is just another level of helping."

To work the corner, vice officers have to keep up with street slang. It's a little funny to listen to them soberly explain that prostitutes will ask guys whether they "want a date," meaning sex, or define "bottom bitch," a pimp's number-one prostitute. But serving as a decoy can be dangerous — officers have had confrontations with pimps, and even been kidnapped and held at gunpoint — but the work is a lot safer than it used to be. In the '90s, there were fewer rules, and prostitution stings sometimes ended with the decoy in the car alongside the john and backup officers chasing them.

Things are calmer now. Decoys no longer dress like hookers, because prostitutes themselves "are trying to blend in with the crowd," Ravella explains.

This is a development attorneys have jumped on. The decoys who approach their clients, they point out in court, are ordinary-looking women in everyday clothes. They might be asking for directions. Especially if their clients speak little English, it might not be obvious that the decoy is posing as a prostitute.

Maria Lopez, an attorney at the public defender's office, says she has represented clients in about 70 prostitution cases over the past seven years. From her experience reviewing audiotapes of arrests, she says that decoy officers can be very aggressive in their tactics, and that many tapes don't contain good enough justifications for an arrest.

The structure of the FOPP program, which relies on fees stemming from the arrests, gives decoys the incentive to make lots of arrests — and if they can't get enough arrests for solicitation, Lopez suggests, then they may turn to loitering.

"They've set up a system for systematic prosecution and arrest for this type of crime, whether it exists or not, and so they're out there for that sole purpose," Lopez says. "They're not going to come home empty-handed."

Decoy operations don't constitute entrapment as long as undercover officers do not make the crime "unusually attractive to a law-abiding person." Decoys typically wait for men to initiate some sort of interaction, but the bar is low — even making eye contact with a decoy is all it takes to have her approach.

Lopez says one of her clients was arrested after a decoy agreed to have sex with him for $3 and a T-shirt. "How are you going to turn that down?" she asks. Another attorney recalled a long-ago incident in which a decoy agreed to sex in exchange for a bag of oranges. Officer Susan Rolovich, a longtime decoy officer, says that she has told potential clients that she would have sex for as little as $5.

As prostitution has shifted to the Internet, it has become more difficult for police officers to make arrests in street-level stings. Since 2005, the number of johns arrested has dropped steadily, according to a 2009 audit by the city's budget analyst. For many years, the fees paid by the johns covered the costs of the entire FOPP program, as well as programs for prostitutes who wanted to leave the business. But with a declining number of arrests, there are no longer enough johns to subsidize the program. In 2008, FOPP cost a total of $178,147, including $43,089 for the cost of the police decoy operations themselves, and $94,010 for the District Attorney's costs in administering the program. In the past four years, the revenue shortfall has totaled $270,374, according to the budget report, and the District Attorney's office has kept FOPP afloat with money from other projects.

The Internet has also caused major problems for prostitution enforcement.

Even as the police are heading out on their twice-weekly operations, members of may be live-updating police sightings on a discussion board labeled "Street Action."

"Not a night for the SF Mission," one May post was titled. "Looks like the LE [law enforcement] are out en force — I was on my motorcycle and witnessed them pulling over people they suspect of trolling the streets," its author warned. "Be safe out there."

On MyRedBook, which bills itself as an online resource for "Escort, Massage Parlor, and Strip Club Reviews," these self-titled "hobbyists" or "mongers" trade reviews of their favorite streetwalkers and post emphatic warnings about how to tell a decoy cop from a real prostitute. One method is the "cop check," which involves getting a free grope to prove that a woman is not a police officer.

Because of this scrutiny, officers are wary of sharing details about their enforcement strategies. The worry is that any information published in the media will be immediately posted on MyRedBook and scrutinized for more hints to avoid arrest. Ravella asked that the police vehicles and the precise locations of their stings not be described in detail, and that photographs not betray the identities of officers or johns.

But on a recent evening, Internet or no Internet, Dickson didn't have to wait on the corner for long. After she arrested the Salvadoran men, a grandfatherly man in a gray Mercedes pulls up. He's wearing a wedding ring, and he gets cited for straight solicitation.

Dickson has barely settled herself on the corner for a third time when a U-Haul truck rolls past and then pulls over. The driver claims later that he had just stopped to adjust one of his mirrors. Dickson walks up to his passenger-side window to ask whether he wants a date. The guy doesn't agree to pay her for sex — he was in the middle of helping some friends move. But he explained later that he did ask for her phone number after she let him know she was a prostitute.

Just that seemed to be enough to get him arrested for loitering.

San Francisco has a strong and vocal minority of people who think prostitution should not be a crime. Advocates of decriminalizing sex work argue that police enforcement makes prostitution dangerous, both for those who sell sex and those who buy it.

But arresting men for solicitation is relatively straightforward. Agreeing to a sex act for money is a misdemeanor, and men who do so can be arrested and cited. If first-time offenders don't want to go to FOPP's re-education program, they will be sent through the criminal justice system. It's not easy to get a conviction on any prostitution case in San Francisco — Greg Barge, managing attorney of the misdemeanor trial unit in the District Attorney's office, says the jury selection process can be a nightmare — but when the recording of the arrest is clear and convincing, the DA can sometimes secure a conviction.

Using Penal Code 653.22(a), loitering for the purposes of prostitution, is more ambiguous. According to Elizabeth Joh, a professor at the UC Davis School of Law who specializes in criminal law and procedure, this statute has been upheld by a 1998 Court of Appeal judgment. But, she writes in an e-mail, "I wouldn't be surprised if this is used too often. ... It's a very flexible tool that appears to confer a great deal of discretion upon the police."

Criminal law experts note that, historically, loitering statutes have often been abused, particularly by police forces in the segregated South. Robert Weisberg, a professor at Stanford Law School, says the statute's use for prostitution arrests reminds him of an infamous case from 1950s Alabama in which a black man was arrested for an "attempted attempt" to rape a white woman.

Picking up men in prostitution stings means arresting people just for possibly planning to commit a crime, not for actually committing one, he says. Under the loitering statute, he says, the link between the arrest and the actual committing of a crime grows even more tenuous.

Peter Arenella, a UCLA School of Law criminal expert who was a legal analyst during the O.J. Simpson trial, says he thinks San Francisco police are abusing the statute. The point of the law, he says, is to target criminal intent. So, if a man trolling for prostitutes asks a decoy for her phone number and then calls her within minutes of their interaction, that's enough to justify an arrest. But if he asks for her number to use at "some unspecified future time," that's not good enough, "constitutionally speaking," Arenella says. "If all they have is an intent to possibly solicit sex sometime in the future, that's not enough for a conviction under the statute. They're wrong."

It's not just law professors who say San Francisco's loitering arrests are out of the ordinary, but fellow police officers in California. Public information officers and members of the vice divisions in Oakland, San Jose, Riverside, and Anaheim all say they would not arrest johns in their prostitution stings simply for talking to decoy officers and indicating a possible future interest in sex for money.

"We want the people who are serious about doing this," Detective Michael Cobb of the Riverside Police Department says. Cobb says that his department will actually let men drive away, even after they have already negotiated a sex act, if the men show any signs of hesitancy about actually going through with the deal.

Since they're looking for proof of "absolute intent, we figure it's a stronger case if we give them the opportunity to leave."

Anaheim doesn't use the loitering statute against potential johns at all. In Los Angeles, San Jose, and Riverside, it's used rarely — about 95 percent of their arrests in stings targeting johns are solicitation arrests, and 5 percent or less are loitering arrests. "You've got to be fair about this," says Officer Jim Saleda of the Oakland Police Department. "You don't want a law like this — which is a great tool — to be pulled because people abuse it."

Ravella argues that the way San Francisco police use the law poses no risk of arresting men who aren't serious about picking up a prostitute. There's no reason "a normal, average person" would continue talking to a woman once he realizes she's selling sex. "Once he hears that, [a guy will say] 'Oh, I'm not interested in that,' and he's going to move on," he says.

If a crime is committed in a decoy's presence, she has no choice whether to make an arrest: "You don't let a guy go just because he said he was joking."

Most guys claim after the fact that they weren't serious, Dickson says, even when they're on tape agreeing to a specific sex act for money.

From Ravella's perspective, other police departments are taking a chance with their less aggressive use of the loitering statute. What happens, he asks, if the Riverside police let a man go, and then see him again another night? They've failed to document him as a repeat offender.

Police officers outside San Francisco are quick to emphasize that each city's approach is different. What is important, several say, is that they coordinate with the local district attorney, so that the cases from their decoy operations will be strong ones.

But Barge says that his office will almost never file a stand-alone loitering case. They know from experience that San Francisco juries will not convict on a single loitering charge. The hundred-odd men arrested each year for loitering, of course, have no way of knowing that their citations will probably not turn into criminal cases.

The high percentage of Latino men arrested in prostitution stings is not news to the District Attorney's office. After a few years of comparatively low enrollment in the John School, the DA's office appointed Jackie Martinez, who speaks Spanish, to talk to arrested men about their chance to opt into an education program. Enrollment in the school immediately jumped. She estimates that 60 percent of the men arrested are Spanish speakers.

It wasn't always that way: In 2000, only a tiny fraction of the men arrested were Spanish speakers, according to Martinez' analysis of the arrest records. But, in recent years, the proportion of Latino men arrested has grown to become the majority of the arrests.

This has been a longstanding source of concern at the public defender's office. But Adachi says his office was not aware that many Latino men were arrested for loitering as well. "The court and the District Attorney should be concerned about a disproportionate number of Latino men being arrested for a charge where the evidence is also questionable," he says. He says the high percentage of Latinos raises "grave concerns," especially because the men who are arrested are given the option to attend the John School — and pay a fine of up to $1,000 — before their cases are examined to see whether the charges are provable.

Erica Terry Derryck, a spokeswoman for the District Attorney's office, says that the point of the program is to give men the chance to avoid the criminal court system altogether.

Because of a lack of comprehensive records, it's hard to find out what happens to men picked up for loitering. According to statistics from the District Attorney's office, most don't end up at the John School, even though most are eligible. Only 34 of the men arrested for loitering chose to attend the school in 2009, about a third of the total arrests, and the proportion was even lower in 2008.

Barge says the District Attorney sets aside some loitering cases, hoping that the same men will get cited again — which, he says, does happen occasionally. But most loitering cases are transferred to community court, where the men have a chance to tell their side of the story to a panel of community members who serve as judges.

Paula Bullock, a coordinator for the city's community courts, says that a small number of these men convince the community panel that they're not guilty; the majority pay a fine of up to $500 or agree to community service.

Of course, for many men, even being accused of solicitation is deeply shameful. Law professors say that whether or not the men are ultimately convicted doesn't matter. "The punishment is the arrest," Arenella says.

Because of the large numbers of Latino men arrested in prostitution stings, it might be possible to challenge the legality of the arrests in court, Adachi says. But that would require demonstrating discriminatory intent on the part of the police.

Ravella emphasized repeatedly that decoy officers interact with the men who approach or express interest in them — they don't choose men to target.

The city's sting operations are planned in response to neighborhood complaints about street-level prostitution, which currently focus on Polk Gulch and the Mission. "Even in the Upper Polk Street area, you still get Hispanic guys who are up there," Ravella says. "It's not that we're looking for them."

Miguel Robles, coordinator of the Latin American Alliance for Immigrant Rights, says some immigrants have no better option for sex than trying to buy it. Many are single men who work long hours and don't have girlfriends here. "They are coming from a different society," he says. "In [parts of] Mexico, prostitution is legal. If you go to Guatemala, it's legal."

He continues, "I think the difference is, most of the white people, they are looking for the prostitutes on the Internet; and Latinos, they don't have access to Craigslist." (Craiglist is, of course, only one of the websites offering advertisements for "adult services"; among the others is SF Weekly's Backpage.)

For Franklin Zimring, a professor at UC Berkeley's Boalt Hall School of Law who recently co-wrote a book on vice crimes, it's ultimately in this choice of street-level versus Internet enforcement that he sees the city's policing as discriminatory.

It's not the arrest procedures he finds problematic, but the policy choice to go after street prostitution — and, by extension, poor Latino immigrants — and let Internet prostitution become decriminalized in a de facto way. "Instead of arresting Mexican day laborers, we should give them netbooks," cheap laptops, he quips.

Last summer, the police did conduct a number of Internet stings. According to arrest records, these stings picked up only two men with Latino names in roughly a dozen arrests — a much smaller proportion than the 60 percent of street-level arrests.

The city's budget analyst recommended in his report that the police pursue more Internet stings in hopes of increasing the number of arrests and bringing the program back to firmer financial ground.

But there are both political and logistical issues with this approach. The Internet stings had very small returns, Ravella says; one August sting netted zero arrests. Even when men might respond to ads the police post on Craigslist, many of them simply fail to show up. San Francisco hotels were also unwilling to cooperate with the operations. As a result, Lieutenant Mary Petrie, who was then overseeing vice, put a halt to the web stings, Ravella says.

Targeting Craigslist also has no direct impact on neighborhoods, Ravella says. Given limited police resources, responding to neighborhood complaints comes first.

These complaints are real. From an apartment at California and Larkin streets, it's easy to hear the clack-clack of high heels on the sidewalk as young girls walk up and down, bare-armed despite the cold. In parts of the Mission, residents are often jolted awake by the sounds of prostitutes fighting outside. During one recent decoy operation in the Polk Street corridor, Tom Nguyen, the owner of a corner store, quietly brought over a bag of Red Bull drinks. He explained that he wanted to show his appreciation. By late last year, prostitution had become a real problem in his area, he said, but thanks to a major step-up in police enforcement, there are now many fewer prostitutes on his corner.

Zimring says many of the problems with prostitution stings have the same root cause: Enforcement policy is highly discretionary. Each city or town has its own standards. Because policies are often made within a police department chain of command, there's little opportunity for the public to review them or debate the principles behind them.

"The whole thing is completely secret," he says. "If you want to hassle either prostitutes or customers, you can do a lot of hassling without any checks and balances of judicial control."

"Who's up in arms about this?" he asks. "Nobody."

About The Author

Lois Beckett


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