State v. Kittilstad

The Facts

Defendant, a Lutheran minister, was charged with four counts of soliciting prostitution.  Defendant sponsored five Panamanian students to come to the US.  Defendant told the students that he would pay them if they brought back women, had sex with them, and let him watch.  One exchange student testified that defendant claimed he would throw them out if they denied his request and testified the threat was made more than 25 times.  All testified that he made the request at least once a week over an 18 month period.

Procedural History

Convicted at trial.  Motion challenging the bindover and the charges in information denied on interlocutory appeal.  Defendant argues that the statute outlaws the solicitation “to practice prostitution,” which he did not do.  He argues he was only attempted “to facilitate voyeurism, not the providing of sex for a fee.”

Relevant Statute

“whoever intentionally solicits or causes any person to practice prostitution or establishes any person in a place of prostitution is guilty of a Class D felony”

Prostitution defined: …

The Issue

Whether paying for watching the consensual sex of another constitutes solicitation of prostitution.

The Holding

Yes, affirmed.  If the court were to interpret the statute as the defendant does, a pimp could not be found guilty under the statute, where he solicits another to have sex with others who then pay the pimp.  Defendant’s interpretation excludes all scenarios of prostitution except where the individual having sex is paid directly by the individual intercourse occurs with.  The exclusion of these scenarios would be unreasonable.  The statute disallows “having, offering to have, or requesting to have sex in exchange for something of value.”  Therefore, “any student who acquiesced to the defendant’s alleged requests would have been engaged in prostitution.”  Consequently, defendant is guilty of soliciting prostitution, since his acts would have initiated the act of prostitution.

The intent of the statute was to prevent anyone from soliciting any acts that constitute the act of prostitution.  Getting paid to have consensual sex with another individual by one who wishes to watch meets the definition of prostitution.  Therefore, the intent of the statute is met where the defendant is found guilty.

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