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Minnesota appeals court: Texting a sex worker isn't 'public' solicitation

Cases against four men in Willmar have been dismissed, twice, because the inside of your phone isn't a public place.

Cases against four men in Willmar have been dismissed, twice, because the inside of your phone isn't a public place. Getty Images/iStockphoto

In the early months of 2019, cops in Willmar hatched a ruse to catch men soliciting a prostitute. 

From January through March, at least four men responded to online ads for a woman named "Brittany," who offered half-hour or hourly rates for "sexual contact," ranging from $80 to $140. She asked each of the four men to meet her at a hotel, but first to stop at a gas station before to buy her a treat such as a candy bar or a can of pop. Each did.

When each fellow arrived at Brittany's hotel room, they found waiting cops, and got arrested.

Somehow this simple little trap, and the aggressive prosecutions that followed, has proven too clever by half. Cases against them were dismissed, first by a district court, and then by a three-judge panel of the Minnesota Court of Appeals, which ruled Monday the accusations against them didn't rise to the level of a gross misdemeanor. 

At issue is the method of solicitation: text messages, which were supposed to be the evidence against these men. Instead it's what freed them. The Kandiyohi County Attorney's Office charged the would-be johns with a gross misdemeanor for soliciting prostitution.

In order to meet that standard, the request has to come in a "public place," a term with an expansive definition under Minnesota law: Sidewalks, skyways, steam rooms, bars, restaurants, alleys, cars, and parking lots are all public. The problem for Willmar's cops and Kandiyohi's prosectors is they didn't prove any of these men was in one of those places when they texted "Brittany" about booking her services.

"[T]he solicitation activity occurred entirely on-line and via text messages," reads the ruling. "Respondents’ criminal acts of soliciting prostitution were complete when they sent their initial text messages offering to pay Brittany for sexual contact. Each respondent’s location during these initial exchanges is unknown."

The Minnesota Attorney General's Office filed to join the case to encourage the court to "construe the gross misdemeanor soliciting-prostitution statute broadly to allow for better targeting of human-trafficking-related offenses," according to the ruling. Setting aside the fact there's no evidence indicating Brittany was underage, or a victim of trafficking, the court found the existing (and 40-plus-year-old) language on gross misdemeanor solicitation is plain, and applies only to "public" acts.

Under state law, the gross misdemeanor crime of soliciting comes with a fine of "at least $1,500," while the misdemeanor crime (without the "public" part) carries a penalty of "at least $500."