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Montana’s prostitution statutes do not criminalize the buying or selling of non-penetrative sex. That means the state’s “illicit massage parlors,” as they’re referred to by law enforcement, weren’t breaking the law if workers provided sexual activity that didn’t involve penetration. Senate Bill 147, which has passed the Senate and House as of Saturday, and now awaits action by Gov. Steve Bullock, aims to change that by broadening the law to include “sexual contact that is direct and not through clothing” to the already prohibited exchange of sexual intercourse.
At least 13 of the state’s approximately 20 such parlors are in Billings, according to business listings referenced in bill testimony. Sen. Margie MacDonald, D-Billings, introduced SB 147 — which expands the definitions of and penalties for trafficking in addition to expanding the definition of prostitution — after being approached by Yellowstone County Area Human Trafficking Task Force cofounders Penny Ronning, a Billings city councilperson, and Stephanie Baucus, a Billings attorney, with concerns that the businesses could be fronts for trafficking.
Rep. Daniel Zolnikov, R-Billings, has introduced House Bill 749, which would require massage businesses to display therapists’ licenses, allow officials to interrupt therapy sessions of two hours or longer, and allocate more than $500,000 for the biennium to hire two dedicated trafficking investigators in the Division of Criminal Investigation. HB 749 has passed the House and is scheduled for a third Senate reading on Wednesday.
Earlier in the session, state representative and 2020 candidate for attorney general Kimberly Dudik, D-Missoula, introduced a since-tabled bill that would have added “assisted masturbation” to the state’s list of commercially prohibited activities. She’d been approached more than a year earlier by Missoula Police Detective Guy Baker, who had discovered that Missoula police couldn’t bring prostitution charges against a woman whose neighbors complained that she was seeing clients in an apartment complex because they suspected she was only providing legal handjobs.
Baker has worked both state and federal trafficking cases in partnership with various task forces. He supported Dudik’s successful push in 2015 to pass House Bill 89, which established the state’s trafficking laws.
“If we get information right now that someone … was giving massages with a happy ending, a handjob, you couldn’t investigate that further, because that’s not a criminal act right now,” Baker said the week before SB 147 was passed.
The lack of a law against assisted masturbation did not stop a federal investigation from resulting in the indictment of a Billings-area spa owner, Scot Donald Petrie, on prostitution-related charges, as reported on Tuesday by the Billings Gazette. Details of the investigation have not yet been released, but the indictment alleges that Petrie “developed a scheme and enticed and encouraged individuals to travel from outside the State of Montana to Montana for the purpose of commercial sexual activity.” The counts specifically allege that Petrie violated Montana state laws prohibiting prostitution in their existing form.
Forcing someone to work and forcing someone to engage in sexual activity are both crimes under Montana’s existing human trafficking and sexual assault laws, but changing state law so that all possible commercial sex acts are criminalized will make it easier for law enforcement to investigate the parlors, Baker says. He has also said, along with MacDonald, Zolnikov, and the members of the Yellowstone County task force, that the goal is to prosecute traffickers, not further criminalize people selling sex.
During SB 147’s first hearing, representatives from the ACLU of Montana and the Montana Coalition Against Domestic and Sexual Violence presented concerns to the committee.
“We opposed expanding the definition of prostitution because it would further criminalize victims of trafficking and sex workers,” said ACLU of Montana Advocacy and Policy Director SK Rossi.
Both organizations are satisfied with the current version of SB 147, and MacDonald said she agreed with the groups’ concerns.
“We’re not trying to create additional types of prostitution, so we are trying to be very careful about the amendments that we make so we’re not basically criminalizing and perhaps victimizing even more women,” she said in February.
The resulting changes, which make buying assisted masturbation, but not selling it, a crime, are an attempt to criminalize only one side of an illegal transaction. How that might work in practice will be seen after the law goes into effect.
The relevant change to Montana’s prostitution law is the addition of “sexual contact that is direct and not through clothing” to the roster of prohibited activity. A qualification designed to avoid further criminalizing people who sell sex reads: “a prostitute may be convicted of prostitution only if the prostitute engages in or agrees or offers to engage in sexual intercourse with another person for compensation.”
Under SB 147, a person offering the sale of a non-penetrative sex act would be committing the crime of prostitution, but could not be convicted of prostitution unless they offered sexual intercourse. Whether such a person could be arrested is not clear. A client for such a service, however, could be arrested, Baker said.
“By including a handjob in commercial sex, then you would have the reasonable suspicion to believe that a crime is being, is about to be, or was committed, which gives the police the right to conduct an investigative stop or an investigation on a person” who had patronized a parlor.
Baker referred the question of how prosecutions might work under the new law to Stephanie Baucus, who served on a trafficking task force in the Washington, D.C. area while working for the U.S. Department of Justice from 2009 to 2010. She is married to Assistant U.S. Attorney Zeno Baucus, who has prosecuted federal trafficking cases out of Billings. Both Baker and MacDonald said Stephanie Baucus was instrumental in crafting the bill.
Baucus said the question would be up to a prosecutor to fully explain, but said that, to her understanding, the new law’s establishment of a crime would allow for further investigation of a suspected trafficking situation. For example, if an undercover officer investigating a massage parlor were offered an illegal service while posing as a client, that would give law enforcement grounds to proceed with an investigation.
“While the person offering [the service] couldn’t be convicted of prostitution, the crime would still be committed.” Baucus wrote in an email. “So that would likely give [police] the probable cause they need.”
In practice, anti-trafficking operations targeting massage parlors frequently lead to the arrests of workers. The recent Florida parlor raids that yielded the arrest of New England Patriots owner Robert Kraft have failed to yield trafficking charges, and if the sex workers are convicted on prostitution charges, they may be deported. That’s one reason Rep. Jade Bahr, D-Billings, whose district includes two parlors, said she voted no on SB 147.
“Many [people] in massage can also be immigrants looking for a path to citizenship. What sort of avenues for freedom from trafficking are we offering them besides the threat of deportation?” Bahr wrote in an email. “We should decriminalize sex work, give workers protections and make it safe for people to come forward if they are being abused. Some don’t come forward because of the fear of being prosecuted and persecuted for what they’ve done with patrons whether by choice or not.”
The push to increase penalties and broaden definitions in Montana comes at a time when other state legislatures, including those in Utah and Oregon, are passing bills that grant immunity from prostitution charges if a victim reports an assault by a client or a robbery that occurred while she was engaged in prostitution.
Bahr’s concerns are similar to those expressed by advocacy groups for Asian massage workers.
“The understandable fear of police leads to hiding, greater vulnerability and risk-taking, and a climate of desperation and panic, which makes workers more vulnerable to exploitative conditions,” wrote a member of Red Canary Song, a New-York based organization for massage workers, in an email to the Montana Free Press. The organization was formed in 2018 after a massage worker in Queens, New York, fell from a window to her death during a police raid.
Quantifying trafficking in Montana is difficult. During a Senate Judiciary Committee hearing for SB 147, committee member Sen. Jen Gross, D-Billings, asked how many trafficking cases have been recorded in Montana, but no one was able to provide her with an estimate. The Division of Criminal Investigation reported 23 cases in 2018, and counts as a case any tip that requires investigative follow-up. The DCI also listed 34 adults as “rescued,” which includes both potential trafficking victims and people that law enforcement encounters by answering online escort ads.
According to data supplied by the Court Administrator’s Office, there have been no convictions on state trafficking charges since the 2015 passage of Montana’s trafficking laws. Federal prosecutions have yielded three trafficking convictions in the state, and convictions in three additional prostitution-related cases that the Montana U.S. Attorney’s Office considers trafficking-related. During that same time period, at least seven individuals have been convicted on state charges of promotion of prostitution or aggravated promotion of prostitution that included elements of trafficking such as force, fraud, coercion, or underaged victims. No trafficking or prostitution convictions in the last four years have been connected to massage parlors, according to court records. Representatives of the Billings Police Department and the FBI said no state or federal charges had been connected to the massage parlors since 2012, when a couple who owned two Billings spas were convicted on federal charges of money laundering and interstate promotion of prostitution. The charges against Petrie are the first since then.
Two of the seven individuals convicted on state charges since 2015 were women who faced promotion of prostitution charges while at the same time being considered victims in one or more of the other five cases. One, an 18-year-old woman who was considered a victim in trafficking charges against two men that stemmed from a 2015 Great Falls bust, was convicted on felony promotion charges because she had been working alongside a 17-year-old. The other, a 21-year-old arrested along with a 17-year-old during an internet sting in Billings, was offered an affirmative defense — that she was not guilty by reason of being a victim of the trafficker charged with directing the two women — but refused to say she was a victim and was subsequently convicted and given a suspended sentence. The 17-year-old was arrested in Billings and extradited on a warrant for a probation violation to her home state of New Mexico, where a chance encounter between her extradition officer and a trafficking investigator led to trafficking charges against her mother.
Baker said that arrests of victims are a problem that results from a lack of law enforcement training.
“If that’s happened, that’s part of the mentality we’re trying to change, that these women in a trafficking situation are victims and they should not be charged,” Baker said. “So that just is part of the ongoing education of law enforcement and the justice system and prosecutors to understand the difference.”
The difference is that between a victim and a criminal, which, under the provisions of SB 147, will still be determined by the discretion of law enforcement, not the law.