SIOUX FALLS, S.D. (AP) – A legislative commission charged with reviewing the state’s criminal code will look at closing an apparent loophole in South Dakota’s prostitution law that could allow people to charge money for erotic massages.

Reuben Bezpaletz, the Legislature’s chief researcher and legal counsel, said he received e-mails from State Rep. Joni Cutler and Minnehaha County State’s Attorney Dave Nelson on Friday about drafting possible changes.

Cutler, who chairs a Criminal Code Revision Commission subcommittee, said members should get to the prostitution statute at their Aug. 24 meeting.

Culter said a constituent e-mailed her an Associated Press story on Friday detailing the loophole that prompted a Minnehaha County prosecutor to dismiss a prostitution case.

Deputy State’s Attorney Randy Sample dropped charges against Sioux Falls massage business owner Hong Kien after noticing that South Dakota only prohibits sexual penetration for a fee, not touching of any sort.

Culter, a former prosecutor, said laws sometimes work well for the majority of cases, but then unusual circumstances highlight necessary changes.

Similar wording in Maine’s law led to an abundance of “relaxation spas,” which offered erotic massages to paying customers. Former Maine state legislator Ed Povich said the industry was somewhat underground in that state’s larger cities, but it eventually worked its way into rural areas such as his hometown of Ellsworth.

“What they had done is set up shop pretty close to the main thoroughfare, and the ladies were out there on the porches sort of as a lure,” Povich said in an interview. “So the town got mad at it.” He said many small towns passed ordinances banning hand-to-genital contact, but the spas found other places to do business.

“That’s kind of how the law works,” said Cutler, R-Sioux Falls. “It takes a certain set of facts to bring out that there is a problem.”

Chapter 22-23-1 of the state’s codified law states: “Any person who: (1) Is an inmate of a house of prostitution or otherwise engages in sexual activity for a fee; or (2) Loiters in or within view of any public place for the purpose of being hired to engage in sexual activity; is guilty of prostitution.”

The chapter gives the phrase “sexual activity” the same meaning as “sexual penetration,” which in another section of the state’s law books lists very specific criteria.

Similar wording in Maine’s law led to an abundance of so-called “relaxation spas,” which offered erotic massages to paying customers.

Former Maine state legislator Ed Povich said the industry was somewhat underground in that state’s larger cities, but it eventually worked its way into rural areas such as his hometown of Ellsworth, Maine.

“What they had done is set up shop pretty close to the main thoroughfare, and the ladies were out there on the porches sort of as a lure,” Povich said in an interview. “So the town got mad at it.”

Povich said many small towns passed ordinances banning hand-to-genital contact, but the spas found other places to do business.

“They banned the activity, and that outfit called Body Magic moved out of town,” Povich said. “But they didn’t move out of town far enough. They moved into another town in my district.”

So Povich introduced legislation to add just three words to the state statute, making it read: “engage in, or offering to engage in a sexual act or sexual contact.” The bill passed in 1996.

“I figured the only way to take care of them was to ban the activity statewide,” he said.

Republican state Sen. Tom Hennies said he remembers officers busting massage parlors in Rapid City back in the 1970s, but they were operating as full-fledged prostitution houses.

Hennies, vice chairman of the criminal code panel and a former Rapid City police chief, said the city occasionally still deals with prostitutes, but it’s usually individual cases not larger business operations.

“I suppose it goes on, but it isn’t out there where everyone is looking at it,” he said.

Despite the dropped criminal charges, Kien’s business license remains suspended pending an administrative hearing before the city attorney’s office in Sioux Falls.

A Sioux Falls ordinance in a chapter titled “Massage, Massage Establishments and Massage Therapists” does list massaging genitals as an unlawful act.

Assistant City Attorney Allen Eide said he doesn’t recall the city dealing with massage establishments during his 21/2 years in the position, but it must have once been an issue to warrant a 1974 ordinance and a rewrite in 1978.

“At one time, Sioux Falls must have had a problem with prostitution masquerading as escort services and massage parlors,” he said.

Eide said Friday he couldn’t comment on the ongoing licensing case.

Kien’s attorney, Nichole Carper, has said her client maintains her innocence and the case against her is based on a misinterpreted statement.

An Associated Press check of other Midwest states’ prostitution laws shows most were more specific about which activities constitute prostitution.

Laws clearly show that sexual touching for money is illegal in North Dakota, Minnesota, Iowa, Kansas, Missouri, Colorado, Utah, Idaho, Illinois and Wisconsin.

The activity is even a crime in Nevada if it occurs outside of a licensed brothel.

But three states bordering South Dakota have wording similar to the state’s law.

Like its neighbor, Nebraska defines prostitution as involving “sexual penetration” in exchange for money, while Wyoming pins the crime on an act of “sexual intrusion.” Montana uses the phrase “sexual intercourse,” which has a similar definition to the others.

AP-ES-08-13-04 1630EDT



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