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Legislators grapple with changing bawdy place, prostitution laws

Posted: 10:13 PM, Mar 07, 2020
Updated: 2020-03-07 22:13:53-05
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RICHMOND, Va. -- The General Assembly passed measures this session repealing restrictions on sex before marriage, swearing in public and being a "habitual drunkard ," but Del. Mark Levine, D-Alexandria, said he is considering updating another "outdated" Virginia law next year.

He’s considering changing the statute for keeping, residing in, or frequenting a bawdy place. In Virginia, that means using a building for lewdness, assignation or prostitution. Violating this law is a Class 1 misdemeanor.

Levine takes issue with the words “lewdness,” meaning obscene or vulgar, and “assignation,” or, an appointment for a meeting, especially between lovers.

“I want to remove the lewdness part, remove the assignation part, but leave in the prostitution part because I don’t think Virginians today think being lewd should be a crime,” Levine said.

This year there have been six arrests in Henrico County for keeping or residing in a bawdy place, and one for prostitution.

A Freedom of Information Act request submitted to Henrico County Police by Capital News Service found that since 2010, 44% of prostitution arrests were for keeping, frequenting, or residing in a bawdy place. Five percent of arrests were for being a prostitute, while 23% were for soliciting a prostitute.

Mikki Alexander, an organizing member of the Richmond chapter of the Sex Workers Outreach Project, said that the broad definition of bawdy place law heightens the risk that sex workers could be charged with prostitution crimes. Sex work, Alexander said, is an umbrella term that includes any sort of erotic or sexual services in exchange for money or goods, from lap dances at a strip club, to escorting, to modeling or performing in an adult video.

”If you have somebody who has a location that they work out of, their actual workplace, that could be considered a bawdy place,” Alexander said. “If you had somebody who is renting an apartment from somebody and it's the place where they live and also work, then that could be considered a bawdy place.”

“So it really is this kind of broad definition that basically equates to, sex workers don’t have any place to live or work,” she added.

Alexander said the Sex Workers Outreach Project supports full decriminalization of sex work and prostitution.

Levine was inspired to update bawdy place law after discussion that centered around House Bill 251, introduced this session by Del. Vivian E. Watts, D-Fairfax.

Watts’ bill would make it a Class 6 felony for an adult to bring a minor to a bawdy place. Her bill passed the House 96-1 last month, with Levine casting the lone opposing vote because of the bill’s inclusion of the bawdy place language.

Those two words prompted a Senate committee to carry over the bill into 2021. The committee had a 15-minute discussion about how a person could be criminalized for visiting a bawdy place.

Sen. Joseph D. Morrissey, D-Richmond, said that a couple could become felons for having a secret meeting in a seedy hotel.

“We know what you’re trying to get at, but here’s the problem: two lovers, 30 years old, go to a seedy motel for an assignation; they are now felons,” Morrissey said.

Watts pointed out that Morrissey’s example was already illegal under bawdy place law, and the purpose of the bill was to criminalize adults who visit known bawdy places with minors.

Of the arrests made in the past decade, Henrico County charged five juveniles with keeping a bawdy place, and one with frequenting a bawdy place. There were three juveniles charged in the past decade for prostitution.

Watts suggested a new law redefining bawdy places.

“I think another bill, another year might modernize this long-standing reference to bawdy place,” Watts said

Morrissey proposed an amendment that would remove the words lewdness and assignation from the bill, but this would require removing them from the bawdy place code.

Sen. R. Creigh Deeds, D-Bath, said that the amendment could impact existing case law.

Michael Feinmel, Henrico County deputy commonwealth’s attorney, said that repealing the bawdy place law could have a negative impact on law enforcement’s ability to provide victim services to sex workers, such as human trafficking residential programs.

“If you take away certain laws, prostitution and bawdy place laws, then that’s going to reduce our ability to connect people with services,” Feinmel said.

He said that a prostitution case cannot be made without a substantial act in furtherance.

“Something further has to happen, whether it’s opening up a condom, whether it’s taking off clothing, whether it’s touching somebody in a private part -- something along those lines,” he said. “Something else has to happen rather than just the agreement.”

Feinmel said that rather than placing undercover police officers in a situation where a substantial act in furtherance would take place, Henrico County law enforcement uses the bawdy place law. He said that if law enforcement can prove someone is using a hotel room to perform sex acts for money, it is easier to initiate the criminal process

Feinmel was unaware of any cases in recent years where the lewdness and assignation terms in the bawdy place law were actively used to enforce the statute. He suggested that the bawdy place law could be fixed, but it would take a change to state prostitution law.

“If our prostitution code section was amended to say an agreement [verbal] for a sex act in exchange for money constitutes prostitution, then it would be unnecessary to have that bawdy place code section,” Feinmel said.

Levine said his interest in modernizing Virginia code is rooted in a personal philosophy about the government’s role in regulating the private affairs of its citizens.

“I think folks should be free to do what they want if they’re not harming anyone else. And if it’s truly consensual, it’s not any of the government’s business,” Levine said.

By:
Conor Lobb