Saturday July 20, 2013

KEITH WHITCOMB JR.

Staff Writer

BENNINGTON -- Because of how the state defines prostitution, charges against a local spa owner who police cited in June with prohibited acts will not be going forward, at least for now. Nor are charges expected anytime soon from an investigation into another local spa where allegations of human trafficking were being examined.

Bennington County State’s Attorney Erica Marthage said Friday the prostitution statute used the term "sexual intercourse" which, unlike "sexual acts" in other sex-related statutes, does not have a clear definition, or at least not one that includes some of the types of activities police suspect are occurring at the two spas searched in May, namely sexual contact between one person’s hand and another’s genitals, commonly referred to as a "happy ending."

On June 10, Bennington Police cited Young Shin, 56, owner of Cozy Spa at 240 North St., to appear in Bennington Superior Court Criminal Division on July 22 to face a charge of prohibited acts. Shin was cited based on information local police, with the help of Vermont State Police, and the Federal Bureau of Investigations, discovered in May when they searched Cozy Spa, as well as the Green Spa at 412 Main St. Police said they were looking into allegations of human trafficking and prostitution.

Marthage said charges have not been filed against Shin, and given the lack of information found at Green Spa, charges are not likely to come from there, either.

The law defining lewdness and prostitution is Title 13 V.S.A 2631, while the law prohibiting it is 13 V.S.A 2631, which is also called "prohibited acts."

According to it the definition, "The term ‘prostitution’ shall be construed to include the offering or receiving of the body for sexual intercourse for hire and shall also be construed to the include the offering or receiving of the body for indiscriminate sexual intercourse without hire."

Marthage said the law does not define "sexual intercourse," but it does define "sexual act" which is used in other sex crime statutes.

"Sexual act is defined, in the state of Vermont in the sexual assault statutes, and that is defined as, essentially any genital to genital, mouth to genital; it doesn’t include hand to genital," Marthage said.

Marthage said because charges were not filed she could not go into detail about the police investigation of the spas, but said what police found evidence of was nothing her office could charge as prostitution.

"There is some question about whether you could include oral sex in sexual intercourse. I think the common law definition of sexual intercourse is not the same as our definition of a sexual act, which would include oral to genital contact. So, not speaking specifically as to what happened here in Bennington, but say, hypothetically, even if we have people that have received and people that have given a happy ending massage, it’s not prostitution."

She said her office was primarily concerned with the possibility of human trafficking, people being coerced into prostitution by some means. She said similar cases have been filed in Chittenden County by the State’s Attorney’s Office there, and the targets have been landlords, however the same prostitution definitions are in use.

"The woman on North Street, there was nothing about that investigation that merited any type of human trafficking," Marthage said. "That was an owner-operated business with a single ... she doesn’t have employees, it’s just her. That’s different than the situation at the other location where it was clearly employees."

Marthage said the investigation began with police looking at Internet pages and listings, which pointed them to the two spas. "The person that was making all of the payments for rent, transactions, all of the banking things that had to do with the connections being made on the Internet was none of the people at this location when we went there. The search warrants did not uncover anything by way of computers, records, appointment logs, any kind of business records. There were cryptic notepads with hash marks. There was nothing that you would expect to see in a legitimate business."

Because massage therapy businesses are not regulated in Vermont, there are no business standards to enforce, Marthage said. She said she thinks the Chittenden County State’s Attorney’s Office may have the same problem in going after landlords.

"Even if I had them admitting to everything we know is actually going on there, I still wouldn’t be able to charge it," she said. "Unless I had information that actual intercourse was taking place there for money, and there’s nothing to support that."

Marthage said the investigation was exhaustive when it came to the police suspicions of human trafficking at Green Spa. Two women were there when police searched it. One was the main employee while the other claimed to be a friend there to pick up money from the business. Marthage said the employee rents an apartment in town, which she showed police when asked.

"We had nothing, and we had no statements from anyone that she was being coerced," said Marthage, adding that there was nothing about the women’s immigration status to cause concern. "I think it’s something that needs to be addressed legislatively."

According to the Burlington Free Press, last month a Williston landlord was charged with a misdemeanor count of prohibited acts for allegedly allowing prostitution to occur in a building he owns.

Marthage said if that case turns out favorably, she may revisit the investigation into the local spas, but that may depend on what the specifics of the Chittenden County case are and if they include intercourse or not. She said the statute of limitations on prohibited acts is three years, while a new law could not be applied retroactively.

In addition to prostitution, prohibited acts also forbids "lewdness" and "assignation." Marthage said the definition for lewdness requires it to be "open and gross."

"Open and gross is not two people in a room," she said. "There would have to be at least one other person witnessing it, and assignation includes the making of an appointment or engagement for the purpose of prostitution or lewdness."

She said the searches did not turn up anything indicating appointments were being made, and from what police observed the businesses appear to be run on a "walk-in" basis.

"I think it’s an issue because our statutes are so out of date," said Sen. Dick Sears, D-Bennington, the chairman of the Senate Judiciary Committee.

Sears said he plans to have a law drafted for the coming legislative session that will address the issues being raised, adding that most lawmakers and prosecutors view people coerced into prostitution as victims.

Contact Keith Whitcomb Jr. at kwhitcomb@benningtonbanner.com or follow him on Twitter @KWhitcombjr.