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Prostitution, § 944.30(1) – Sufficiency of Evidence – On Charge of Soliciting Intercourse: Offer to Watch Subject Masturbate

State v. David Richard Turnpaugh, 2007 WI App 222
For Turnpaugh: David P. Geraghty, Michael Sosnay

Issue: Given that, as charged, the offense required soliciting “sexual intercourse” (which in turn is defined as “vulvar penetration”), whether the statement “that he was looking for sex and he wanted me to masturbate and that he wanted to watch” is sufficient to support conviction.

Holding:

¶7        Although Turnpaugh said he was “looking for sex,” he limited the scope of that phrase by describing >what he was willing to pay for—watching Ferguson masturbate. Offering payment is, of course, the sine qua non of the violation of Wis. Stat. § 944.30(1). Thus, even though, looking at the evidence in a light most favorable to the jury verdict, Turnpaugh might have also wanted to have sexual intercourse with Ferguson, he only offered to give her something “of value” in return for the voyeuristic gratification he would get from watching her masturbate. Since the statute requires a request for “nonmarital sexual intercourse” be coupled with the offer of “anything of value,” the evidence that Turnpaugh was willing to pay to watch Ferguson masturbate does not satisfy § 944.30(1).

This was the result of a sting. Interestingly, none of the subsections in 944.30 criminalize “voyeuristic gratification,” so it’s not as if the State inadvertently lodged the wrong charge. Though the court doesn’t mention it, there’s nothing that fits; the State simply plunged ahead with a prosecution for something that couldn’t meet the elements. Good thing Milwaukee isn’t plagued by violent crime.

 

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