Failure to Pay a Prostitute: Rape or Theft?

[Zevico]

That PA case is rape according to Aus/Eng/Can law. When someone points a gun to your head and tells you to have sex, it doesn't matter if you're a prostitute. You're clearly submitting due to fear of force and violence to you as a person. Just because you -might- or do get paid afterwards is irrelevant.

[Alinestra Covelia]

A late update.

My laconic Crim Law professor had this to say:

Some states have a rape by fraud or deception provision but I doubt it would reach this

[Darius871]

Originally posted by Alinestra Covelia
A confounding factor here is that prostitution itself can be completely illegal in areas. In which case, the court will generally not attempt to uphold a defective contract. (It treats the contract as though it never even occurred.)

Absent the contract, the woman's consent is based on a legal nullity, thus the man never had her consent. (???)

You're too fixated on a contractual theory of obligation here; she may nonetheless have grounds for recovery of the quantum meruit, albeit possibly less than the contract rate. Hell, even promissory estoppel might apply here if you think about it.

[Darius871]

Originally posted by Alinestra Covelia
A late update.

My laconic Crim Law professor had this to say:

Some states have a rape by fraud or deception provision but I doubt it would reach this

I'm fairly certain that rape by fraud wouldn't apply here. In almost all jurisdictions (common law and MPC both), one is only criminally liable for "fraud in the factum" and not for "fraud in the inducement." For instance, D would be criminally liable if he convinced V that he was inserting a medical instrument but it was in fact his penis, but not be if he convinced V that the act of sexual intercourse was for treatment of a fatal disease (yes, these are both real cases). Applying this to the topic at hand, the johns only convinced the hookers that the act of sexual intercourse would result in payment, which is clearly mere fraud in the inducement.

The rationale behind this hornbook doctrine, of course, is that most consensual sex taking place on any given day is fraud in the inducement. If you convince some barfly that you're a hotshot senior partner with a Ferrari and condo in Manhattan, should you be tried for rape? Or if you say "I love you" dishonestly? Or if you claim to last at least 40 minutes straight? Of course not.

(Damn, this would make a real juicy practice exam! )

[TCO]

It sounds like this guy had some rapes with coercion, but that most were theft of services.

[Alinestra Covelia]

Originally posted by Darius871


You're too fixated on a contractual theory of obligation here; .... Hell, even promissory estoppel might apply here if you think about it.

Isn't promissory estoppel basically a means to find a contract when the elements are not quite all met?

I'm not entirely "fixated" on a contractual theory at all. I also looked at the policy implications of allowing people to retroactively withdraw their consent and found it would open a legal can of worms.

(Though I believe Justice Souter would have written "annelids" instead of worms.)

[Darius871]

Originally posted by Alinestra Covelia
Isn't promissory estoppel basically a means to find a contract when the elements are not quite all met?

It isn't a contractual theory at all; it's simply a type of complaint that "estops" the defendant from pursuing summary judgment due to the undisputed lack of a valid contract. P need only show that a naked promise (no pun intended) which D 1) should have reasonably expected to 2) induce action or forbearance by P and 3) does induce such action or forbearance 4) is binding if injustice can be avoided only by enforcement. I'd say all elements apply to the topic of this thread, although the hooker probably wouldn't recover more than her legal costs.

Even if promissory estoppel is a stretch, recovery on the quantum meruit is enough on its own. If I build you a porch with no express or implied contract but still a belief that you'll pay me $400, I can still recover the quantum meruit ("as much as deserved") for services rendered. If the average porch-builder in your area charges $300, then the court would find that you were unjustly enriched in the amount of $300 and order you to pay that restitution unless you can provide convincing evidence that my services were a friendly gratuity. Again here the court does not create a fictional "contract" at all, but rather thrusts a quasi-contractual equitable duty upon you. Looking at the hooker scenario, if she expected $100 but the "market rate" on her corner is $10, $10 is the most she can recover.

[Alinestra Covelia]

The policy concerns still stand, though. A court will be very unlikely to apply the law in upholding an illegal practice in any case.

This is one reason why you don't get many complaints for non-payment of contract killer fees, for example.

I think we're drawing a very narrow line here. The way I was taught, Promissory Estoppel is a means of bringing contract remedies to bear even on a fact pattern where you don't have one of the elements (which you helpfully listed for us).

The only other thing I can add is that we learned two practices of promissory estoppel under the UCC, one of which was to specifically bypass the requirement of a writing by the Statute of Frauds. It seems the policy behind this is to say more or less "OK, we recognize there is a set number of elements you have to show in order to enforce a contract, but because some of these may be counterintuitive, we're going to let you bypass one of them if you can show compelling need by the others."

And I resent the fact that you imply that I am entirely fixated on promissory estoppel. Such an implication damages my reputation as a sane, clear thinking, level headed rational person. I will tell you that the only thing I'm entirely fixated on at this point is shotguns and napalm.

[Darius871]

Originally posted by Alinestra Covelia
The policy concerns still stand, though. A court will be very unlikely to apply the law in upholding an illegal practice in any case.

This is one reason why you don't get many complaints for non-payment of contract killer fees, for example.

The fact is we'll never know if a court would grant restitution here because A) no hooker would care enough to sue and B) even if one did, their attorney fees would far outweigh any their loss to recover. I'm only saying that hypothetically, maybe some kooky local judge somewhere would grant restitution, especially considering the plaintiff has no other hope of recourse since rape by fraud is unavailing for reasons stated.

Obviously an illegal contract is no contract at all, but quasi-contractual restitution leaves the court with more discretion.

Originally posted by Alinestra Covelia I think we're drawing a very narrow line here. The way I was taught, Promissory Estoppel is a means of bringing contract remedies to bear even on a fact pattern where you don't have one of the elements (which you helpfully listed for us).

The only other thing I can add is that we learned two practices of promissory estoppel under the UCC, one of which was to specifically bypass the requirement of a writing by the Statute of Frauds. It seems the policy behind this is to say more or less "OK, we recognize there is a set number of elements you have to show in order to enforce a contract, but because some of these may be counterintuitive, we're going to let you bypass one of them if you can show compelling need by the others."

Sure promissory estoppel can be and indeed almost always is used to prevent the defense that a supposed contract lacked consideration or didn't comport with the statute of frauds, but its policy origins are to be found in courts of equity, not contract theory. But that's splitting hairs.

Originally posted by Alinestra Covelia
And I resent the fact that you imply that I am entirely fixated on promissory estoppel.

I never implied any such thing; I only said that's one possibility and unjust enrichment is another. But again, we'll never live to see the day that someone gives it a try.

[DinoDoc]

reputation as a sane, clear thinking, level headed rational person. I will tell you that the only thing I'm entirely fixated on at this point is shotguns and napalm.

[Kuciwalker]

[Dr Strangelove]

Clearly the threat of violence implied by the perp in the OP decides the issue. If you flash a knife at someone to get sex it's rape. If you obtain the services of a hooker then walk away without payment it's a different matter. In the majority of states prostitution is illegal. The state does not want to encourage it, therefore I don't see that the state has any interest in giving the business of prostitution protection under the fraud act. Likewise I'm certain that no state would prosecute someone for fraud for stealing cocaine, heroin, marijuana, Ecstacy or LSD from a dealer without paying. If he used a weapon to coerce the dealer into surrendering his goods then he should be tried for assault, etc.

Am I wrong?

[Alinestra Covelia]

No, you're right. The original poster asked us specially to overlook the knife and just to assume there was no violence or other physical coercion.

I had the same response as you at first - "Wait! There's a knife!" but then I read the first post and buried in there somewhere is the no-knife hypothetical.

[Alinestra Covelia]

A late update from www.newsoftheweird.com/archive

Philadelphia Municipal Judge Teresa Carr Deni outraged women's activists and the local bar association in October when she dismissed rape charges against four men who had sex with a prostitute at gunpoint. Because the woman had initially agreed to a business proposition, said the judge, the men should properly be charged with "armed robbery" for "theft of services." Said Deni, "She consented, and she didn't get paid." [Philadelphia Daily News, 10-12-07, 11-7-07]

[Zevico]

I guess if you can prove that the gun had *NOTHING* to do with her consent then I would agree with the Judge. Otherwise the obvious answer is that it's rape.