By TIM HULL
(CN) - Utah can criminalize masturbating for a fee to close loopholes in prostitution laws, but another section of the law that broadens the definition of a sex act is unconstitutionally vague, a federal judge ruled.
Three Salt Lake City-based escort services - Bushco, Companions LLC and TT II Inc. - sued the state after the Legislature approved several amendments to its sex solicitation law in 2011.
The amendments expanded the definition of a sex act to include "exposure of a person's genitals, the buttocks, the anus, the pubic area, or the female breast below the top of the areola; masturbation; touching of a person's genitals, the buttocks, the anus, the pubic area or the female breast; or any act of lewdness."
The new law also included a subsection that said "an intent to engage in sexual activity for a fee may be inferred from a person's engaging in, offering or agreeing to engage in, or requesting or directing another to engage in any of the acts described in Subsection (1)(c) under the totality of the existing circumstances."
Salt Lake City's police chief testified before the state Legislature that the amendments would close a loophole in the state's prostitution laws.
"Prostitutes today, in order to detect an undercover officer before soliciting sex, ask potential customers to engage in some of the conduct listed in Subsection (1)(c)(i-iv) knowing that undercover officers are forbidden from engaging in such conduct," according to the ruling.
On dueling motions for summary judgment brought by the escort companies and the state, U.S. District Judge Dee Benson upheld the provision criminalizing masturbation and other acts.
"The crime is clearly defined as intent plus a specifically identified act," Benson wrote Wednesday. "The subsection not only clearly outlines the behavior and requisite intent to create culpability under the statute such that a person of ordinary intelligence would be on notice of what conduct is prohibited, but it also provides a clear legal standard for those who will enforce the statute."
Benson further disagreed with the plaintiffs' argument that masturbation is "protected conduct."
"Here, plaintiffs argue that masturbation is protected conduct because, as they suggest, masturbation has not and is not considered a 'sexual activity' under Utah Code Ann. § 76-10-1301," according to the ruling. "The court disagrees. Section 1301 includes 'acts of masturbation' in the definition of 'sexual activity.' As a result, masturbation for a fee is not a protected activity and, therefore, Subsection (1)(c) does not infringe on a substantial amount of protected speech. Accordingly, Subsection (1)(c) is not overbroad."
But Benson struck another subsection of the statute as overbroad and vague, saying it leaves much to the "personal interpretation" of police officers.
"The language '[a]n intent to engage in sexual activity for a fee may be inferred from ... the acts described in Subsection (1)(c)...' is circular, unnecessary, and mere surplusage," according to the ruling.
"In the case at bar, the language 'under the totality of the existing circumstances' renders the statute open to personal interpretation by a police officer, which will inevitably result in "arbitrary and discriminatory enforcement," Benson added.
After striking the offending subsection from the statute, the judge found that "the remainder of the statute passes constitutional scrutiny."
