Commonwealth v. King

Hennessey, C.J.

(concurring). I concur in the main opinion, of course, including its basic discussion of the *23“equal rights” amendment. That part of the main opinion is dictum, since the defendants’ argument that the complaints against them should be dismissed because of unconstitutional sex-based discrimination failed for lack of evidence of such discrimination. However, dictum though it may be, I would broaden it to a recognition of the validity of the defendants’ argument that unlawful discrimination in enforcement can be proved by a showing that the police department or prosecutor’s office followed an unjustifiable policy of prosecuting prostitutes and not their customers. See State v. Johnson, 74 Wis. 2d 169 (1976). This policy in turn may be shown to be sex-based discrimination (and thus subject to strict scrutiny) by a showing that most prostitutes are women and most customers are males.

The majority recognize the possibility of discrimination in the enforcement of the anti-prostitution law against female prostitutes and not against male prostitutes, but conclude that there is no statute which explicitly provides for the prosecution of the prostitutes’ customers, and that therefore no such discriminatory enforcement can be shown.11 suggest that there are correlative crimes which in many cases may be applicable to the customer’s conduct.

It seems clear to me that in some cases the very evidence which serves to support a guilty finding against the female prostitute inevitably shows criminal involvement of her male customer, although in other cases of mere solicitation there may not be sufficient evidence to warrant a criminal conviction of the man. One of the most likely statutes under which the male customer might be prosecuted is the provision in c. 272, § 53, which punishes “lewd, wanton and lascivious persons in speech or behavior.” See Commonwealth v. O’Brien, 179 Mass. 533 (1901).2

*24It is my view that a female defendant might in some cases meet the burden of establishing proof of discriminatory enforcement by showing, for example, that the arresting officer, for no valid reason, released without arrest her known male customer in circumstances which tended to show that the man was criminally involved. The Commonwealth might well rebut such an inference by showing, for example, that the known male customer of a prostitute died or disappeared, or that there was insufficient evidence by way of his speech or conduct to warrant his arrest. In appropriate circumstances it might well be sufficient for the Commonwealth to show that the customer was arrested but was not prosecuted for reasons lying within traditional prosecutorial discretion.

In short, I would hold that, even though the Legislature has made no express provision for the prosecution of the customers of prostitutes, the existence of correlative statutory crimes, applicable to male customers in some circumstances, may give support to a charge of unconstitutional discrimination against the female prostitute entitling her to dismissal of the complaints against her. If a police custom exists of invariably, and regardless of the circumstances, sending the male customer on his way while at the same time escorting the accused female prostitute into the police car or patrol wagon, this in my view departs from the purpose of the equal rights amendment, and may not even conform to the expressed legislative intention to control prostitution through the processes of the criminal law.

The majority holding decides the issue as to the customers on the additional ground that no evidence of such discrimination was introduced in these cases. On that additional ground, I concur that the motions to dismiss were rightly denied.

I express no opinion as to the type of evidence which would serve as a minimum to support a conviction under this portion of the statute.

Other statutes, e.g., proscribing adultery, fornication, and unnatural acts, may be applicable for prosecution of the customer. It can be argued *24that Commonwealth v. Balthazar, 366 Mass. 298 (1974), has a limiting effect on such prosecutions, but it can also be argued that, since both prostitute and customer are involved in commercial sex, the principles of Balthazar, if applicable to prosecutions of customers, are equally applicable to prosecutions of prostitutes.