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Alaska Legislature

Bills to ban police sexual contact with prostitutes they investigate met with opposition

Earlier this year, the Anchorage Police Department sent one of its top officials to Juneau with a request for lawmakers: Don't pass a bill making it illegal for police to have sexual contact with a person they are investigating.

The proposed House Bill 73 and Senate Bill 112 are offensive to law enforcement officers and unnecessary because myriad laws and regulations already govern such conduct, said Anchorage Police Department Deputy Chief Sean Case.

But there's an awkward caveat: In some "very, very limited" circumstances, the Anchorage Police Department wants to reserve the right for an undercover officer to have certain forms of sexual contact in the course of an investigation, Case said.

He knows that isn't going to sound good. And he wants to explain.

A zero-sexual-contact rule would doom investigations of prostitution — which remains illegal in Alaska — because sex workers have in the past quickly caught on to what police are allowed or not allowed to do in the course of such investigations, Case said.

It all comes down to touching, he said: Prostitutes have used a technique known as "cop checking" to immediately identify officers and shut down an investigation.

"(In an undercover investigation) they ask one simple question: 'Touch my breast.' OK, I'm out of the car. Done. And the case is over," said Case, offering a hypothetical example of what he thinks might happen if the law passed. "If we make that act (of touching) a misdemeanor we have absolutely no way of getting involved in that type of arrest."

The lobbying appears to have worked. House Bill 73 and Senate Bill 112 are both waylaid in committee hearings and appear to be going nowhere in the Legislature, which is struggling to address Alaska's fiscal crisis.

The sponsor of the Senate bill, Anchorage Democrat Berta Gardner, has all but abandoned her efforts, saying she has "decided to focus her efforts elsewhere." She wrote in an email that an explanation from the Department of Law suggested the law wasn't needed.

But the bills have succeeded in raising questions about how far Alaska cops should — and do — go when investigating prostitution.

Conflicting statements

Rep. Matt Claman, an Anchorage Democrat, said he introduced the House bill after he was approached by members of an organization — Community United for Safety and Protection — that advocates for the rights of sex workers in Alaska.

"My sense is if I lined up 10 people in my community and said, 'What do you think about an undercover officer having sexual contact with a prostitute as part of an investigation,' we would find a lot of discomfort," Claman said.

Claman says he's since heard conflicting statements about whether police-prostitute sexual contact does happen, and how often.

"When I first started looking at the bill the (Department of Law) said they had no objections to it in part because there was never any sexual contact that occurs between officers and people under investigation," Claman said. "That has changed. Now (the Department of Law) has been advocating against the bill, at least with respect to sexual touching."

At first "they said not only does sexual penetration not occur but touching does not occur," Claman said. "They now say touching is a necessary part of some sexual trafficking investigations."

National perspective

The bill raises a question: Are Alaska cops actually having sex with prostitutes on the job?

The practice used to be protected legally in some states. In Hawaii, it was legal for police to have sex with prostitutes as part of an investigation until 2014. After the loophole — and the Honolulu Police Department's opposition to closing it — became national news, police dropped their objections to the change.

In April, Michigan's Senate voted to end immunity for police having sex with prostitutes during an investigation. Michigan is the last state with such a law.

In Alaska, current law bars police from having sexual contact with people in custody. But in a sting situation, the prostitute would not yet be in custody until an arrest happens. There's no law covering that.

The idea that police are having sex with prostitutes as a job duty is "offensive," said Case, the Anchorage police chief.

"This bill kind of assumes that is what's happening," he said. "I think the whole premise we're starting from is wrong."

The Department of Law and law enforcement agencies say there are already plenty of regulations keeping officers from engaging in intercourse with prostitutes.

"Sexual relations with the subject of a prostitution sting exceeds the justification allowing the sting," the Department of Law wrote in a statement on behalf of the Alaska State Troopers. An officer could be charged with prostitution, official misconduct or coercion, the statement said.

The Department of Law called the original legislation "overbroad" and "likely unconstitutional" because it included "a wide variety of conduct the sponsor may not have intended to criminalize."

The bill then would have made it a felony for police officers to have sexual contact with a witness or victim in an investigation or past investigation, even if the officer had a pre-existing relationship with the person. Claman said he rewrote the House bill to narrow the focus to barring sexual contact only with people under investigation.

'It has to stop'

For the sex-worker advocates who convinced lawmakers to bring the bills, the inertia has been frustrating.

There should be no loophole for police to have sexual contact with people they are investigating at all, said Maxine Doogan, an advocate with Community United for Safety and Protection, the Alaska sex-worker advocacy group.

"For police officers to go so far as to have sexual contact with people as a means to gather evidence and arrest them and charge them — it's just not necessary," she said. "It's state-sponsored sexual assault."

The group says it paid for a December 2016 statewide phone survey by Hayes Research that found 90 percent of Alaska voters polled "want it to be illegal for police to have sexual contact with those they are investigating," according to Doogan.

"In a state with the highest sexual assault rates in the nation, how can police be allowed to do this?" she said.

'Right now, that would not be allowed'

Court filings documenting past Anchorage prostitution prosecutions suggest that undercover officers have sometimes engaged in what comes close to sexual contact.

Years ago, Anchorage police busted massage parlors with undercover stings like one in 2011 that sent a detective inside an East Tudor business called Tropic Massage posing as a customer.

Notes from a court hearing say the detective testified that he had disrobed and he assumed a sexual position behind a woman working at the business before he activated a signal for backup officers to burst in and make an arrest.

In another 2014 case cited by the group of sex-worker advocates, an undercover detective went even further. In that case, an Anchorage police detective was massaged for 40 minutes by a woman before he signaled for her to touch him and the woman "reached under the towel" and touched his genitals before ending the sting with a "take-down signal."

Case says priorities and internal police standards have changed.

"Today, right now, that would not be allowed," he said of the 2014 incident.

The department doesn't prioritize busting low-level prostitution anymore, instead focusing on sex trafficking as a major crime and targeting the people running prostitution rings.

Since the beginning of 2016, APD has arrested only one person for prostitution, according to the municipal prosecutor's office. That charge was not the result of a sting.

But Case says there's still value in investigating prostitution. In one case a few years ago, a massage parlor sting found women who "were being trafficked, and their passports were being held, they were ordered not to speak English to their clients," Case said.

"We are not out there to go out and find that street prostitute," he said. "What we're interested in now is the trafficking."

How far police should go to find it is still up for debate. Claman said his bill will automatically be reintroduced at the start of the next legislative session.

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