State v. Hawker , 374 P.3d 1085 ( 2016 )

2016 UT App 123THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
RYCHELLE MARY HAWKER,
Appellant.
Opinion
No. 20140473-CA
Filed June 3, 2016
Fourth District Court, Provo Department
The Honorable Fred D. Howard
No. 131400798
W. Andrew McCullough, Attorney for Appellant
Sean D. Reyes and Tera J. Peterson, Attorneys
for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which JUDGE
J. FREDERIC VOROS JR. concurred in part and concurred in
the result, with opinion. JUDGE STEPHEN L. ROTH dissented,
with opinion.
ORME, Judge:
¶1 Appellant Rychelle Mary Hawker (Defendant)
conditionally pled guilty to possession of a controlled substance,
a third degree felony, and sexual solicitation, a class A
misdemeanor. See Utah Code Ann. §§ 58-37-8, 76-10-1313
(LexisNexis 2012). 1 She conditioned her plea on the right to
1. Unless otherwise noted, throughout this opinion the version
of the annotated Utah Code in effect at the time of the charged
conduct is cited.
State v. Hawker
appeal a ruling by the district court, which concluded as a matter
of law that the sexual solicitation statute proscribed the conduct
at issue. Defendant now exercises that right of appeal, and we
reverse.
BACKGROUND
¶2 A detective came across an internet advertisement for
escort services that showed a “scantily dressed” woman “in
seductive pos[es].” The detective called the number on the ad
and spoke to Defendant, asking her to meet him at a motel. He
also requested that Defendant wear a short skirt with no
underwear and “perform with [a] sex toy” while he “watch[ed].”
Defendant agreed to engage in the requested conduct for $250
for thirty minutes or $300 for one hour. She also asked that the
caller “pitch in a little bit for gas money” and told him he could
“tip for whatever it was worth” to him.
¶3 When Defendant arrived in the motel parking lot, the
caller introduced himself, informed the Defendant that he was a
detective, and arrested Defendant for agreeing to “masturbat[e]
with a sex toy for money.” The detective informed her that he
was going to retrieve from her car the bag that purportedly
contained the “toys” he had asked her to bring, and Defendant
warned him that there were syringes in the car, including one
“in the bag that was loaded with heroin.” The detective retrieved
the bag and later testified, “I found a sex toy . . . and then I found
the syringe that was loaded which field tested positive for
heroin.”
¶4 Defendant was charged with possession of a controlled
substance and sexual solicitation. 2 She briefed the district court
2. Defendant was also charged with possession of drug
paraphernalia, but that charge was dropped as part of
Defendant’s conditional plea agreement.
20140473-CA 2 2016 UT App 123State v. Hawker
on the question of “whether the conduct at issue constituted a
violation of the statute, as a matter of law.” After briefing and
oral argument, the district court interpreted Utah Code section
76-10-1313 to mean that “a person agreeing to masturbate so that
another may watch, for pleasure and in exchange for money, is
participating in a sexual activity with that person.” Defendant
subsequently entered “a conditional [guilty] plea with full right
of appeal reserved. If sex solicitation is overturned, [the] State
will move to dismiss [the] drug charge also.” This appeal
followed.
ISSUE AND STANDARD OF REVIEW
¶5 The only question decided in this opinion is whether
Defendant’s conduct violates the sexual solicitation statute, as a
matter of law. 3 See Utah Code Ann. § 76-10-1313 (LexisNexis
3. Defendant also asks us to decide whether the district court’s
interpretation of the relevant statute implicates her “rights to
due process of law” or violates her “right to free expression
pursuant to the First Amendment.” Defendant’s specific
argument is apparently that the sexual solicitation statute is
unconstitutionally vague. There is a cogent vagueness challenge
to section 76-10-1313 of the Utah Code, as there are two possible
interpretations of the term “with” as used in the statute, as
hereafter explained. See Utah Code Ann. § 76-10-1313(1)(a)
(LexisNexis 2012). Indeed, the State’s own argument on this
point highlights this apparent vagueness. At oral argument,
counsel for the State pointed this court to two possible
definitions of the word. The first definition suggested is “one
that shares in an action,” and the second refers to mere
“accompaniment or companionship.” Webster’s Third New Int’l
Dictionary 2626 (1993). As explained later in the text, we reject
the State’s suggestion that for purposes of the solicitation statute,
“with” could mean “to be together, in the same place,” as a
matter of statutory interpretation. Because we decide this case by
(continued…)
20140473-CA 3 2016 UT App 123State v. Hawker
2012). “This is essentially an issue of statutory construction that
we review for correctness, according no particular deference to
the trial court.” State v. Mecham, 2000 UT App 247, ¶ 20, 9 P.3d
777.
ANALYSIS
¶6 Critical to our analysis is the text of two statutory
provisions, section 76-10-1313, which outlines the elements of
sexual solicitation, and section 76-10-1301, which defines “sexual
activity.” The first reads, in pertinent part, as follows:
(1) A person is guilty of sexual solicitation when
the person:
(a) offers or agrees to commit any sexual
activity with another person for a fee;
(b) pays or offers or agrees to pay a fee to
another person to commit any sexual
activity; or
(c) with intent to engage in sexual activity for a
fee or to pay another person to commit any
sexual activity for a fee engages in, offers or
(…continued)
employing standard statutory interpretation, we do not reach
Defendant’s constitutional challenges. “Generally, we avoid
reaching constitutional issues if a case can be decided on other
grounds.” I.M.L. v. State, 2002 UT 110, ¶ 9 n.3, 61 P.3d 1038.
Because in deciding this case it is unnecessary to resolve the
constitutionality of the relevant statute, and because
“unnecessary decisions are to be avoided,” we do not reach
Defendant’s due process and First Amendment issues. See Hoyle
v. Monson, 606 P.2d 240, 242 (Utah 1980).
20140473-CA 4 2016 UT App 123State v. Hawker
agrees to engage in, or requests or directs
another to engage in any of the following
acts:
...
(ii) masturbation . . . .
Utah Code Ann. § 76-10-1313 (LexisNexis 2012). The second
provision reads, “‘Sexual activity’ means acts of masturbation,
sexual intercourse, or any sexual act involving the genitals of one
person and the mouth or anus of another person, regardless of
the sex of either participant.” Id. § 76-10-1301(4).
¶7 The State contends that Defendant violated section 76-10-
1313(1)(a) because she agreed to commit sexual activity—
masturbation—with the detective watching, for a fee. See id. § 76-
10-1313(1)(a). The State argues that she also violated section 76-
10-1313(1)(c) because, with intent to engage in sexual activity for
a fee, she agreed to engage in masturbation. See id. § 76-10-
1313(1)(c). For the reasons discussed below, Defendant did not
violate either subsection.
I. Subsection (1)(a)
¶8 We first consider the question of whether subsection (1)(a)
criminalizes Defendant’s behavior, which, in the words of the
State, is the making of an “agreement to masturbate with a sex
toy for a paying observer.” In other words, did she agree “to
commit any sexual activity with another person for a fee”? See id.
§ 76-10-1313(1)(a) (emphasis added). We carefully interpret
criminal statutes that lie in the shadow of the First Amendment.
See, e.g., Lehnert v. Ferris Faculty Ass'n, 500 U.S. 507, 526 (1991).
¶9 “When interpreting statutes, our primary goal is to evince
the true intent and purpose of the Legislature.” State v. Watkins,
2013 UT 28, ¶ 18, 309 P.3d 209 (citation and internal quotation
marks omitted). This is not an undisciplined exercise in best
guesses or mind reading; rather, “‘[w]e first interpret the statute
20140473-CA 5 2016 UT App 123State v. Hawker
according to its plain language.’” Id. (alteration in original)
(quoting Wilcox v. CSX Corp., 2003 UT 21, ¶ 8, 70 P.3d 85).
¶10 There can be no doubt that masturbation is sexual
activity; indeed, the Utah Code is explicit on this point. See Utah
Code Ann. § 76-10-1301(4) (“‘Sexual activity’ means acts of
masturbation[.]”). And Defendant undisputedly agreed to
masturbate for a fee. But the question is not simply whether
Defendant agreed to engage in sexual activity for a fee. Instead,
the question is whether she agreed to commit that sexual activity
with another person for a fee. See id. § 76-10-1313(1)(a). The term
“with” has two possible meanings in this context. It can connote
“one that shares in an action,” or it can mean “accompaniment
or companionship.” Webster’s Third New Int’l Dictionary 2626
(1993). If the former definition applies, Defendant did not violate
subsection (1)(a), because there was never an agreement that the
detective would manipulate the toys or otherwise actively
participate in the act of masturbation. But if the latter applies, the
result is different because Defendant agreed to masturbate while
in the detective’s company.
¶11 To determine which variant of “with” this statute
employs, it is appropriate to consider the other forms of sexual
activity mentioned in the statute. “The several provisions of the
statute should be construed together in the light of the general
purpose and object of the act and so as to give effect to the main
intent and purpose of the legislature as therein expressed.” Dunn
v. Bryan, 299 P. 253, 254–55 (Utah 1931) (citation and internal
quotation marks omitted). Section 76-10-1301(4) contains a list of
behaviors that, under section 76-10-1313(1)(a), may not lawfully
be engaged in “with another person for a fee.” See Utah Code
Ann. §§ 76-10-1301(4), -1313(1)(a). These behaviors, “so used
together and directed toward the same objective[,] . . . should be
deemed to take character and meaning from each other.” See
State v. Jones, 407 P.2d 571, 573 (Utah 1965).
¶12 For an analogous situation, consider State v. Serpente, 768
P.2d 994 (Utah Ct. App. 1989), which construed our lewdness-
20140473-CA 6 2016 UT App 123State v. Hawker
involving-a-child statute. 4 Id. at 995. See Utah Code Ann. § 76-9-
702.5 (Michie Supp. 1988). In Serpente, a woman was convicted of
lewdness involving a child after she went to her son’s school,
confronted a teacher, and, “[a]s she was leaving the room, . . .
suddenly stopped at the door, raised the back of her dress at the
teacher, and said, ‘To you, sir!’” 768 P.2d at 995. Witnesses
testified that while the woman “raise[d] her dress above her
buttocks,” they saw only a white garment and not her “naked
bottom.” Id. The applicable statute provided a list of acts
constituting criminal behavior and then ended with, “‘or
performs any other act of gross lewdness.’” Id. at 996 (emphasis
omitted) (quoting Utah Code Ann. § 76-9-702.5). We explained:
The phrase “act of gross lewdness” is not subject to
a plain meaning, but rather must derive its
definition from the context in which it appears. To
this end, we resort to the doctrine of ejusdem
generis. This doctrine provides that “where general
words follow the enumeration of particular classes
of things, the general words will be construed as
applying only to things of the same general class as
those enumerated.”
Serpente, 768 P.2d at 997 (quoting Black's Law Dictionary 464 (5th
ed. 1979)). We ultimately concluded that the statute’s phrase “act
of gross lewdness . . . refers to an act of equal magnitude of
gravity as those acts specifically set forth in the statute, namely,
the exposure of genitals or private parts, masturbation, or
trespassory voyeurism.” Id. (internal quotation marks omitted).
4. The court in Serpente construed a statute using the principle of
ejusdem generis, which is not directly applicable here. See State v.
Serpente, 768 P.2d 994, 997 (Utah Ct. App. 1989). Looking to
Serpente is nevertheless helpful because it demonstrates the
importance of construing together multiple terms contained in a
single sentence. See id.
20140473-CA 7 2016 UT App 123State v. Hawker
Concluding that Ms. Serpente’s act was not on par with the
enumerated ones, we reversed her conviction. Id.
¶13 Like the lewdness statute in Serpente, the sexual
solicitation statute must be read to prohibit receiving or agreeing
to receive payment for acts that are of the same sort, or “of equal
magnitude.” See id.; Utah Code Ann. §§ 76-10-1301(4),-1313(1)(a)
(LexisNexis 2012). The list set forth in section 76-10-1301(4)
includes sexual intercourse, which requires two people to be
jointly engaged in the conduct, and sexual contact between “the
genitals of one person and the mouth or anus of another
person”—again, necessarily a two-person activity. Neither of
these categories of conduct involves one person acting and
another person watching. In other words, for these types of
sexual activity to be prohibited under subsection (1)(a), “with”
must mean that the other person is joining in the activity and not
merely there as company or a very small audience. 5 Construing
like terms together, “with” must mean the same when applied to
masturbation. It is therefore not enough, under subsection (1)(a),
that someone agrees to masturbate on her own for a fee while
5. In reaching this conclusion, it is also helpful to consider the
interplay between subsection (1)(a), which includes the term
“with,” and subsection (1)(b), which does not. It seems apparent
that the two subsections are meant to complement each other, in
that subsection (1)(a) applies to the individual who is paid and
subsection (1)(b) applies to the individual who pays. Compare
Utah Code Ann. § 76-10-1313(a), with id. § 76-10-1313(1)(b). Both
subsections require an offer to, or agreement with, another
person. Id. § 76-10-1313(1)(a)–(b). Yet only subsection (1)(a) uses
the term “with.” This reveals that “with another person” applies
to the performance of the sexual activity, because if the
Legislature had intended for it to modify the offer or agreement,
the term “with” would be in both subsection (1)(a) and
subsection (1)(b), which it is not.
20140473-CA 8 2016 UT App 123State v. Hawker
another person is present. Because this is precisely what
Defendant agreed to do, her agreement did not violate section
76-10-1313(1)(a). 6
II. Subsection (1)(c)
¶14 The State also argues that Defendant’s conduct violated
subsection (1)(c) because, with the intent to engage in sexual
activity for a fee, she agreed to masturbate. See Utah Code Ann.
§ 76-10-1313(1)(c)(ii). The State’s argument, at first glance,
appears to comport with the plain language of the statute. But
6. We note that few, if any, jurisdictions have considered the
question of whether masturbation, which is considered sexual
activity by statute, is sufficient to form the basis of a conviction
for sexual solicitation when the activity is performed alone while
others pay to watch. But at least one jurisdiction has addressed a
similar question when “sexual activity” was not as explicitly
defined by statute. In 1991, a Pennsylvania court considered
whether “self-masturbation for hire with no physical contact
between patron and performer constitutes prostitution.”
Pennsylvania v. Bleigh, 586 A.2d 450, 452 (Pa. Super. Ct. 1991). The
court, “[h]aving examined the evolution of the term prostitution,
and the cases interpreting it, [concluded] that self-masturbation
for hire without any physical contact between performer and
viewer is not the type of conduct intended to come within the
purview of” the state’s prostitution statute. Id. at 453. See also 63C
Am. Jur. 2d Prostitution § 7 (2015) (“Nude modeling does not
constitute prostitution, nor does prostitution include self-
masturbation for hire without any physical contact between
performer and viewer.”) (footnotes omitted); 73 C.J.S.
Prostitution and Related Offenses § 6 (2015) (“Self-masturbation for
hire has been held not to constitute ‘sexual activity’ proscribed
by the prostitution statute, on the ground that sexual activity
requires the physical interaction of two or more people.”).
20140473-CA 9 2016 UT App 123State v. Hawker
such a reading of the statute would create an anomaly by
criminalizing an intent to engage in noncriminal behavior.
¶15 Of course, “[w]hen faced with a question of statutory
construction, we look first to the plain language of the statute.”
World Peace Movement of Am. v. Newspaper Agency Corp., 879 P.2d
253, 259 (Utah 1994). But “when we find ambiguity in the
statute’s plain language[,] we seek guidance from the legislative
history and relevant policy considerations.” Id. If the State’s
plain-language reading of the statute is employed, the conduct
determined not to be criminal under subsection (1)(a)—namely,
agreeing to self-masturbate for a fee—would nevertheless be
sufficient to establish the requisite criminal intent for a violation
of subsection (1)(c). See supra ¶ 13. This would make for an
absurd result, and a “well-settled caveat to the plain meaning
rule states that a court should not follow the literal language of a
statute if its plain meaning works an absurd result.” Savage v.
Utah Youth Vill., 2004 UT 102, ¶ 18, 104 P.3d 1242. See also In re
Z.C., 2007 UT 54, ¶ 5, 165 P.3d 1206 (concluding “that applying
the statute to treat [a minor] as both a victim and a perpetrator of
child sex abuse for the same act leads to an absurd result that
was not intended by the legislature”). It is thus appropriate to
“look beyond the statute to legislative history and public policy
to ascertain the statute’s intent.” Martinez v. Media-Paymaster
Plus/Church of Jesus Christ of Latter-day Saints, 2007 UT 42, ¶ 47,
164 P.3d 384.
¶16 Subsection (1)(c) did not exist until the statute was
amended in 2011. Compare Utah Code Ann. § 76-10-1313(1)
(LexisNexis 2008), with id. § 76-10-1313(1) (2012). Subsection
(1)(c) was added because “prostitution ha[d] evolved greatly in
Salt Lake City and throughout the state” and police would “have
to prove that they are not police officers before . . . a prostitute is
20140473-CA 10 2016 UT App 123State v. Hawker
willing to make an arrangement for an act.” 7 The amendment
was intended by its proponents to operate so that “masturbating,
or asking someone else to do that, for the purpose of showing
that they’re a cop or that they’re not a cop, and if in the whole
context you have enough evidence to show that they’re doing it
to engage in prostitution, then that would be enough for
solicitation.” 8 In short, subsection (1)(c) was added to preclude
prostitutes from asking prospective customers to expose
themselves and masturbate. Apparently this is a highly effective
test for distinguishing police officers from “johns” as on-duty
law enforcement officers will not expose themselves and
masturbate while serious patrons of prostitution are, reportedly,
happy to do so.
¶17 The conduct at issue here is entirely unrelated to the
purpose intended by the Legislature in enacting subsection
(1)(c). Defendant did not ask the detective to engage in any
activity, nor did he agree to do so in order for Defendant to
ascertain whether he was in law enforcement. It is logical to
7. Sexual Solicitation Amendments: Hearing on HB 121 Before the
House Judiciary Standing Committee, 59th Leg. Gen. Sess. (Utah
Feb. 15, 2011), http://utahlegislature.granicus.com/MediaPlayer.
php?clip_id=15138&meta_id=509072 [https://perma.cc/QVF5-
ZHBY] (statement of Chris Burbank, Chief of Police of the Salt
Lake City Police Department, during presentation of Rep.
Jennifer Seelig).
8. Sexual Solicitation Amendments: Hearing on HB 121 Before the
House Judiciary Standing Committee, 59th Leg. Gen. Sess. (Utah
Feb. 15, 2011), http://utahlegislature.granicus.com/MediaPlayer.
php?clip_id=15138&meta_id=509072 [https://perma.cc/QVF5-
ZHBY] (statement of Paul Boyden, Associate Director of the
Statewide Association of Prosecutors, during presentation of
Rep. Jennifer Seelig).
20140473-CA 11 2016 UT App 123State v. Hawker
conclude, then, that the Legislature did not intend for
Defendant’s conduct to be criminalized under subsection (1)(c).
¶18 This is further supported by the fact that subsection (1)(c)
requires two separate acts that are sexual in nature. The first is
the act that the individual intends to engage in—sexual activity
for a fee—and the second is the act that the person “engages in,
offers or agrees to engage in, or requests or directs another to
engage in,” which precipitates the intended act. See Utah Code
Ann. § 76-10-1313(1)(c) (LexisNexis 2012). But the instant case
features only a single act that Defendant both intended to
engage in and had agreed to engage in—self-masturbation for a
fee while her customer watched. It is clear, then, that the intent
component of subsection (1)(c) is meant to be self-referential: If,
with intent to engage in conduct that would violate either
subsection (1)(a) or subsection (1)(b), an individual engages in
the conduct outlined in subsection (1)(c), he or she is guilty of
sexual solicitation, without needing to actually engage in the
conduct proscribed by subsections (1)(a) and (1)(b). If, however,
the person has no intention of violating either subsection (1)(a)
or subsection (1)(b), he or she lacks the requisite intent to violate
subsection (1)(c).
¶19 The conduct to which Defendant agreed did not violate
subsection (1)(a), and it did not implicate subsection (1)(b). Thus,
her intent to engage in that conduct did not violate subsection
(1)(c).
CONCLUSION
¶20 While the State insists that “the Legislature has
specifically said that masturbation is a prohibited sexual
activity,” it is only unlawful under section 76-10-1313(1)(a)
when, for a fee, that activity is to be performed with another
person. “With,” in this context, requires active participation by
two people. And this is not what Defendant agreed to. Her
agreement with the detective to allow him to watch her
20140473-CA 12 2016 UT App 123State v. Hawker
masturbate was not an agreement to engage in sexual activity
with the detective under subsection (1)(a). Furthermore, because
the agreement was not criminal, it cannot supply the criminal
intent required to establish a violation of subsection (1)(c).
Defendant’s conduct is therefore not the sort proscribed by the
sexual solicitation statute, and the district court’s ruling on this
point is reversed. The case is remanded for further proceedings
consistent with Defendant’s conditional plea agreement.
VOROS, Judge (concurring in part and concurring in the result):
¶21 I concur in the result reached by the lead opinion. I also
concur in the lead opinion except as to Part II. I agree that Utah
Code section 76-10-1313(1)(c) does not proscribe Defendant’s
conduct, though I reach that conclusion by a slightly different
route than the lead opinion takes. But ultimately I would reverse
under the rule of lenity.
¶22 “Under our rules of statutory construction, we look first
to the statute’s plain language to determine its meaning.” Sindt
v. Retirement Board, 2007 UT 16, ¶ 8, 157 P.3d 797 (citation and
internal quotation marks omitted). In addition, “[w]e read the
plain language of the statute as a whole, and interpret its
provisions in harmony with other statutes in the same chapter
and related chapters.” Li v. Enterprise Rent-A-Car Co. of Utah,
2006 UT 80, ¶ 9, 150 P.3d 471 (alteration in original) (citation and
internal quotation marks omitted). “Normally, where the
language of a statute is clear and unambiguous, our analysis
ends; our duty is to give effect to that plain meaning.” In re Z.C.,
2007 UT 54, ¶ 11, 165 P.3d 1206. However, “‘a court should not
follow the literal language of a statute if its plain meaning works
an absurd result.’” Id. (quoting Savage v. Utah Youth Village, 2004
UT 102, ¶ 18, 104 P.3d 1242). An absurd result is one “so absurd
that the legislative body which authored the legislation could
not have intended it.” Id. ¶ 13. Finally, “[o]ne of the cardinal
principles of statutory construction is that [we] will look to the
20140473-CA 13 2016 UT App 123State v. Hawker
reason, spirit, and sense of the legislation, as indicated by the
entire context and subject matter of the statute dealing with the
subject.” In re Marriage of Gonzalez, 2000 UT 28, ¶ 23, 1 P.3d 1074(citation and internal quotation marks omitted).
¶23 Bearing these principles in mind, I read section 76-10-
1313(1) as follows. Subsection (1)(a) addresses the situation
where a person offers to engage in sexual activity with another
for a fee. The forbidden acts all involve at least two people:
sexual intercourse, any sexual act involving a specified body
part of one person and a specified body part of another, and—as
explained in the lead opinion—masturbation with another. See
Utah Code Ann. §§ 76-10-1313(1)(a), -1301(4) (LexisNexis 2012).
¶24 Subsection (1)(c), by contrast, addresses the situation
where a person intends to engage in sexual activity with another
for a fee—that is, to violate subsection (1)(a)—but offers to
engage only in a sexual display, i.e., exposure or touching one’s
own body, lewdness, or masturbation. This subsection seems
designed to capture “wink wink” situations where the parties
agree to lawful sexually oriented conduct with the mutual
expectation of more. This reading of the statute effectuates the
reason, spirit, and sense of the legislation.
¶25 While this reading makes sense of the statute, it departs
from the literal statutory text. In the preceding paragraph, I
stated that subsection (1)(c) addresses the situation where the
person intends to engage in sexual activity with another for a fee,
but in fact the subsection requires only that the person intend to
engage in “sexual activity for a fee.” See id. § 76-10-1313(1)(c). It
does not require that the sexual activity be “with another.”
¶26 I reject the literal reading of subsection (1)(c) because that
reading yields a result so absurd our legislature could not have
intended it: a person could commit sexual solicitation by offering
to masturbate alone with the intent to masturbate alone for a
fee—an act that would not even be a crime under subsection
(1)(a). This makes no sense. The State argues that subsection
20140473-CA 14 2016 UT App 123State v. Hawker
(1)(c) is designed to snare prostitutes who require their
customers to self-masturbate “in order to ferret out undercover
officers who cannot engage in sexual activity.” But this
explanation does not address the absurdity of a literal reading of
the statute: to commit sexual solicitation under subsection (1)(a),
a person must offer to engage in masturbation with another for a
fee, but to commit sexual solicitation under subsection (1)(c), a
person need only offer to perform a sexual display (a non-
criminal act) with the intent to masturbate alone (also a non-
criminal act) for a fee.
¶27 The dissent’s reading of the statute suffers, in my view,
from a similar weakness. To read subsections (1)(a) and (1)(b) as
addressing reciprocal sides—payor and payee—of the sexual
activity transaction, the dissent must read “with another person”
into subsection (1)(b). Read literally, subsection (1)(b) (which
omits “with another person”) criminalizes the offer to pay
someone to commit masturbation alone, although subsection
(1)(a) (which includes “with another person”) does not
criminalize the acceptance of that offer—another (I believe)
unintended result.
¶28 In sum, then, under what I consider the most reasonable
reading of the statute, to commit sexual solicitation a person
must either offer to engage in sexual activity with another for a
fee or offer to engage in a sexual display with the intent to
engage in sexual activity with another for a fee. Here, the
evidence does not show that Defendant violated either variant of
the statute. Without evidence that she offered to engage in
sexual activity with another for a fee, she cannot be found guilty
under subsection (1)(a). And without evidence that she intended
to engage in sexual activity with another for a fee, she cannot be
found guilty under subsection (1)(c).
¶29 I concede that even what I consider the most reasonable
reading of the statute departs from a literal reading of its text;
but so do the other possible readings. The statute cannot sensibly
be read according to its plain language—every attempt to
20140473-CA 15 2016 UT App 123State v. Hawker
rationalize it requires ignoring a phrase here or inserting one
there. It is, in short, ambiguous.
¶30 Fortunately, we have a rule for that. “The rule of lenity
requires that we interpret an ambiguous statute in favor of lenity
toward the person charged with criminal wrongdoing.” State v.
Rasabout, 2015 UT 72, ¶ 22, 356 P.3d 1258 (citing State v. Watkins,
2013 UT 28, ¶ 38 n.3, 309 P.3d 209). That three judges of this
court could read the same statute so differently suggests that the
rule of lenity should apply here. On that ground, I would reverse.
ROTH, Judge (dissenting):
¶31 I respectfully dissent.
¶32 The lead opinion concludes that criminalization of
masturbation for pay is precluded under Utah Code subsection
76-10-1313(1)(a), but not subsection 1313(1)(b), because there is a
“with” in subsection 1313(1)(a) that is absent in subsection
1313(1)(b). Compare Utah Code Ann. § 76-10-1313(1)(a)
(LexisNexis 2012), with id. § 76-10-1313(1)(b). In my view, the
lead opinion’s interpretation unjustifiably focuses on an
alternative meaning of the term “with” in subsection 1313(1)(a)
and, in doing so, misconstrues the legislative intent evinced in
the statute’s plain meaning.
¶33 To begin with, it is difficult for me to find a basis in the
simple statutory language for ascribing some sort of ambiguity
to the word “with” in subsection 1313(1)(a) so as to limit the
meaning of “masturbation” to exclude self-stimulation in that
subsection. When we interpret statutes, we “presume that the
legislature used each word advisedly and [we] give effect to
each term according to its ordinary and accepted meaning.”
Nelson v. Salt Lake County, 905 P.2d 872, 875 (Utah 1995). “In
determining the ordinary meaning of nontechnical terms of a
statute, our ‘starting point’ is the dictionary.” State v. Canton,
2013 UT 44, ¶ 13, 308 P.3d 517 (quoting Hi-Country Prop. Rights
20140473-CA 16 2016 UT App 123State v. Hawker
Group v. Emmer, 2013 UT 33, ¶ 19, 304 P.3d 851). Further, we
should not place “singular focus” on ordinary words but should
consider their plain meaning “in light of their association with
surrounding words and phrases and in harmony with other
statutes in the same chapter.” See State v. MacGuire, 2004 UT 4,
¶ 45, 84 P.3d 1171 (Parrish, J., concurring).
¶34 Sexual solicitation, as found in Utah Code section 76-10-
1313, is just one section under the umbrella of “Prostitution”
that the Legislature has designated as “offenses against
public health, safety, welfare, and morals.” See generally Utah
Code Ann., tit. 76, ch. 10 (LexisNexis 2012). Utah Code section
76-10-1301 to section -1314 criminalizes commercial sex acts
that fall under the definition of “sexual activity,” which it
defines as “acts of masturbation, sexual intercourse, or any
sexual act involving the genitals of one person and the
mouth or anus of another person, regardless of the sex of
either participant.” Utah Code Ann. § 76-10-1301(4) (LexisNexis
2012). There is no indication in the plain language of
subsection 1301(4) that “masturbation” is—or may be—limited
to acts involving two active participants; the statutory language
simply prohibits “acts of masturbation.” Nor is there any
indication in subsection 1301(4) that “masturbation” is a
technical term of art. Dictionary definitions of masturbation
indicate that masturbatory acts may be done solo or with
another active participant; in fact, solo masturbation usually
appears as the first entry, suggesting that it is the most
common use of the word. See, e.g., Masturbation, Merriam-
Webster.com, http://www.merriam-webster.com/dictionary/
masturbation [https://perma.cc/2DSR-MLYM] (defining the term
as “erotic stimulation especially of one’s own genital
organs”); Masturbation, Dictionary.com, http://www.dictionary.
com/browse/masturbation?s=t [https://perma.cc/4X6C-C6JL]
(including as the first definition, “the stimulation or manipulation
of one’s own genitals” and as the second, “the stimulation . . . of
another’s genitals”).
20140473-CA 17 2016 UT App 123State v. Hawker
¶35 Subsections 1313(1)(a) and 1313(1)(b) of the Utah Criminal
Code regarding prostitution incorporate subsection 1301(4)’s
definition of “sexual activity” by criminalizing conduct
amounting to offering, paying, accepting payment, or agreeing
to pay for “any sexual activity.” Subsection 1313(1)(a) prohibits
“offers or [agreements] to commit any sexual activity with
another person for a fee”; subsection 1313(1)(b) prohibits
“[payments] or offers or [agreements] to pay a fee to another
person to commit any sexual activity.” The fact that both
subsection 1313(1)(a) and subsection 1313(1)(b) use the word
“any” to precede “sexual activity” seems to suggest that no
limitation on the terms defined in subsection 1301(4) should be
inferred.
¶36 However, the lead opinion seems to do just that when it
focuses on the word “with” in subsection 1313(1)(a), which it
notes has two possible meanings—one that connotes active
participation and one that connotes a more passive presence
with another. 9 It then determines that “with” in subsection
9. My own survey of definitions of “with” comports with the
lead opinion’s recognition of possible definitions of “with”—it is
commonly used to connote togetherness involving either active
or inactive participation in an activity. Merriam-Webster defines
“with” as “used to say that people or things are together in one
place” or “used to say that two or more people or things are
doing something together or are involved in something.”
With, Merriam-Webster.com, http://www.merriam-webster.com/
dictionary/with [https://perma.cc/5T7P-QYNF]. Dictionary.com
provides seventeen definitions of “with.” The first definition is
“accompanied by; accompanying.” With, Dictionary.com, http://
www.dictionary.com/browse/with?s=t [https://perma.cc/3DY4-
XJWW]. Macmillan Dictionary’s first definition of “with” is “if
one person or thing is with another or does something
with them, they are together or they do it together.” With,
MacmillanDictionary.com, http://www.macmillandictionary.
(continued…)
20140473-CA 18 2016 UT App 123State v. Hawker
1313(1)(a) must connote only active participation, and it
concludes that because only subsection 1313(1)(a) contains that
word, the person agreeing to commit self-masturbation for a fee
under subsection 1313(1)(a) has not committed criminal conduct
while the person who offers or agrees to pay for another to commit
the very same act has done so under subsection 1313(1)(b). But
the lead opinion also notes in footnote 5 that the plain language
of subsections 1313(1)(a) and 1313(1)(b) indicates a legislative
intent that these subsections are “meant to complement each
other,” and the logic of that footnote seems to lead naturally to a
conclusion that the Legislature intended to equally criminalize
both sides of the coin of “sexual activity.” In my view, each
subsection addresses one side of the two-sided commercial
transaction for sexual activity; in other words, the plain language
of subsection 1313(1)(a) and subsection 1313(1)(b) seems to
mandate prohibition of all conduct involving, on the one hand, a
person offering or agreeing to be paid by another to commit
“any sexual activity,” and on the other, a person offering,
paying, or agreeing to pay another to commit “any sexual
activity.” Indeed, both subsections include prepositional phrases
that indicate another person must be involved in the transaction;
subsection 1313(1)(a) includes the phrase “with another,” while
subsection 1313(1)(b) includes the phrase “to another.” And in
doing so, each subsection incorporates subsection 1301(4)’s
definition of “sexual activity,” a definition which by its plain
terms places no limitation on the type of masturbation
prohibited.
(…continued)
com/us/dictionary/american/with [https://perma.cc/5S7S-6YNR].
Cambridge Dictionary indicates that “with” connotes
“together” as “used of people or things that are together
or doing something together.” With, Dictionary.Cambridge.
org, http://dictionary.cambridge.org/us/dictionary/english/with
[https://perma.cc/D37W-AN42].
20140473-CA 19 2016 UT App 123State v. Hawker
¶37 Given this, there does not appear to me to be justification
in the plain language of subsection 1313(1)(a) for parsing the
meaning of “with” as closely as the lead opinion does. As noted
in my first footnote, the ordinary dictionary meaning of “with”
is commonly understood to involve either active or inactive
companionship. The inclusion of “with” in subsection 1313(1)(a)
indicates legislative intent that another person must be involved
in the transaction for sexual activity, but there are no other
words in that subsection further qualifying the extent of this
other person’s involvement; conceivably, a person could be
prosecuted under subsection 1313(1)(a) merely for offering to
commit “any sexual activity” with another person for a fee, even
if the other person ultimately declines to agree or to pay.
Similarly, the inclusion of “to another” in subsection 1313(1)(b)
indicates legislative intent that another person must be involved
in the transaction—the person must be paying, offering to pay,
or agreeing to pay another person for sexual activity—but there
are no further words to qualify the extent of the other person’s
involvement in that case, either. Thus, to complement and match
each other regarding the extent of criminalized conduct, the
ordinary meaning of both “with another” in subsection
1313(1)(a) and “to another” in subsection 1313(1)(b) would, in
my view, allow for criminal prosecution of a person who offers
or agrees to be paid to commit “any [acts of masturbation]” for a
fee, including a solo performance. Compare Utah Code Ann. § 76-
10-1301(4) (LexisNexis 2012), with id. § 76-10-1313(1)(a)–(b).
¶38 Furthermore, I am not convinced that the word “with” in
subsection 1313(1)(a) necessarily refers to the type of sexual
activity agreed to. The lead opinion states that the inclusion of
“with” in subsection 1313(1)(a) “reveals that ‘with another
person’ applies to the performance of the sexual activity.” See
supra ¶ 13 note 5. But by parsing the word “with” so narrowly, it
seems to me that the lead opinion’s interpretation places
excessive focus on the type of sexual activity agreed to by the
parties under subsections 1313(1)(a) and 1313(1)(b) rather than
the transaction for the sexual activity by the parties—the very
20140473-CA 20 2016 UT App 123State v. Hawker
conduct a sexual solicitation statute is designed to prohibit. As
discussed above, it seems apparent that subsection 1313(1)(a)’s
“with another person” and subsection 1313(1)(b)’s “to another
person” are meant to require the presence of another person in
the transaction, or attempted transaction, for sexual activity. But
it is less clear to me that those same prepositional phrases—
“with another” and “to another”—also carry and convey any
restriction regarding the type of sexual activity that must be
agreed to. The only word in both subsections that indicates a
qualification on the type of sexual activity itself is the “any” that
immediately precedes “sexual activity,” which, to my mind,
indicates that both subsections criminalize offers or agreements
to commit for pay whichever of the sexual activities listed in
subsection 1301(4) may be the subject of the transaction, without
limitation as to how the activity is to be performed. See Utah
Code Ann. § 76-10-1313(1)(a)–(b). Thus, because subsections
1313(1)(a) and 1313(1)(b) incorporate subsection 1301(4)’s
definition of “sexual activity” without placing explicit
limitations on that activity beyond the word “any,” it seems to
me that the most that can be said regarding the agreement for
the type of sexual activity to be performed is that both
subsections require that the offer, payment, or agreement for
payment be for one of the acts explicitly described in subsection
1301(4). And as noted above, there is no plain language in
subsection 1301(4) that would seem to limit masturbation to only
the version involving two active participants.
¶39 Moreover, although the lead opinion states that it is
construing the statute in light of its general purpose and object,
see supra ¶ 11, the lead opinion’s interpretation seems to
contravene the overarching purpose of this statute. It is one of
the “cardinal principles of statutory construction” that we
choose an interpretation that most precisely aligns with “the
reason, spirit, and sense of the legislation, as indicated by the
entire context and subject matter of the statute dealing with the
subject.” Miller v. State, 2010 UT App 25, ¶ 12, 226 P.3d 743(citation and internal quotation marks omitted). The various
20140473-CA 21 2016 UT App 123State v. Hawker
sections in the Utah Criminal Code regarding prostitution are
meant to criminalize (and thereby discourage) the wide range of
commercial sexual activity—solicitation, patronization, aiding,
exploitation, and prostitution itself, see Utah Code Ann. §§ 76-10-
1301 to -1314 (LexisNexis 2012), all of which arguably demean its
participants and present an insidious threat to the “health,
safety, welfare, and morals” of society. It is difficult for me to see
how paid-for masturbation that involves one actor being
compensated for self-masturbating in the presence of another is
less grave in terms of the overall objective of the statute than one
actor being paid to actually masturbate the other; both versions
generate the harm to the participants and our societal fabric that
the statute seeks to prevent. 10 Likewise, it is hard to see how
penalizing one party for paying for a sexual activity that the
other party is not penalized for performing in exchange for that
payment fulfills the statute’s purpose. And in the context of the
statute as a whole, finding and resolving the ambiguity of
“with” in subsection 1313(1)(a) to limit the statute’s reach in the
case of the person offering or agreeing to commit sexual activity
for a fee seems unjustified, when the alternative, ordinary
meaning of “with” seems to better carry out the statute’s
purpose and policy.
¶40 Finally, I also question the logic in the lead opinion’s
statutory construction. The lead opinion limits the meaning of
“masturbation” in subsection 1301(4) through the meaning of
“with” in subsection 1313(1)(a); there seems to be no other
logical explanation for the lead opinion’s conclusion that
10. The Defendant also argued that the district court’s
interpretation of these subsections of the code—that self-
masturbation is a “sexual activity” criminalized in both
subsection 1313(1)(a) and subsection 1313(1)(c)—renders these
subsections unconstitutionally vague and overbroad. Because
the lead opinion carries the day, I do not address the Defendant’s
arguments on these points.
20140473-CA 22 2016 UT App 123State v. Hawker
subsection 1313(1)(a) requires two active masturbation
participants while subsection 1313(1)(b) does not. But although
we do have canons of textual construction that suggest it is
appropriate to determine the meaning of a statutory term by
looking to other terms in a statute, 11 I am aware of no canon
of construction that suggests it is appropriate to limit the
meaning of a specific word in one subsection of a statute—
“masturbation”—by a general word—indeed, a mere
preposition—in another subsection of a statute. In this regard,
the lead opinion’s construction of subsections 1301(4) and
1313(1)(a) seems to distort the norms of textual construction
where the general purpose is to elicit the Legislature’s intent by
determining the ordinary, common meaning of statutory
language. See State v. Miller, 2008 UT 61, ¶ 18, 193 P.3d 92 (“Our
rule of statutory interpretation requires us to give effect to the
intent of the legislature in light of the purpose the statute was
meant to achieve. The best evidence of the legislature’s intent is
the plain language of the statute itself. And [w]hen examining
the statutory language, we assume the legislature used each
term advisedly and in accordance with its ordinary meaning.”
(alteration in original) (citations and internal quotation marks
omitted)); see also Olsen v. Eagle Mountain City, 2011 UT 10, ¶ 19,
248 P.3d 465 (“Canons of construction . . . are not formulaic,
dispositive indicators of statutory meaning. They are merely
tools that guide our construction of statutes in accordance with
common, ordinary usage and understanding of language . . . .”).
Certainly, the reasoning of the lead opinion does not explain
how the inclusion of the word “with” in subsection 1313(1)(a)
11. See, e.g., In re Disconnection of Certain Territory from Highland
City, 668 P.2d 544, 548 (Utah 1983) (“Where general language . . .
is used together with specific words . . . , familiar rules of
construction (noscitur a sociis, ‘it is known from its associates,’
and ejusdem generis, ‘of the same kind’) require that the general
words be restricted to a sense analogous to the specific words.”
(citations omitted)).
20140473-CA 23 2016 UT App 123State v. Hawker
and its absence from subsection 1313(1)(b) leads to a conclusion
that “masturbation” requires two active participants in one
subsection and not the other when, as the lead opinion suggests,
the other acts in subsection 1301(4) involve two active
participants. If, as the lead opinion asserts, “masturbation” must
be defined as an act where two people are actively participating
because the other two activities listed in subsection 1301(4) are
activities with two active participants, there seems to be no
logical reason not to conclude that the “sexual activity”
criminalized in subsection 1313(1)(b) is likewise limited to
masturbation with two active participants. Thus, even if I were
to assume that “with” is ambiguous, the lead opinion’s statutory
construction is troubling, in my view, because it does not apply
the same limitation to subsection 1313(1)(b) that it applies to
subsection 1313(1)(a). But as discussed, I believe such a
limitation applies to neither.
¶41 In summary, legislators, like others who strive for
precision in expression (judges, for example), often fall short of
perfection, and the wording here could have been more clear.
But I think that an approach that takes into account the statute as
a whole and its overall goals is preferable to one that focuses
more narrowly on a single word, as the lead opinion’s seems to
do. In this regard, I agree with the lead opinion that “[i]t seems
apparent that the two subsections [1313(1)(a) and 1313(1)(b)] are
meant to complement each other,” supra ¶ 13 note 5, and I think
those subsections are intended to accomplish that goal together
by taking into account and criminalizing both sides of the sexual
transaction equally. The plain language of subsection 1313(1)(b)
encompasses the entire range of “sexual activity” described in
subsection 1301(4), and the commonly understood meaning of
the term “masturbation,” when considered in that context,
plainly appears to criminalize paying for another to masturbate
herself. And if the Legislature had intended to exclude the most
common definition of masturbation from subsection 1313(1)(a)
but not from subsection 1313(1)(b), it seems to me that a more
robust showing of intent would be required—something more
20140473-CA 24 2016 UT App 123State v. Hawker
than merely employing the word “with,” a word that would
ordinarily encompass both solo and active-participation
masturbation, in one subsection and not the other. Finally,
there does not appear to be any meaningful policy basis for
criminalizing payment for an act of self-masturbation under
subsection 1313(1)(b) and not the act for which that payment
is made under subsection 1313(1)(a); rather, the underlying
purpose and policy of Utah Criminal Code sections 76-10-1301 to
-1314 seem to support the opposite conclusion. For these
reasons, I respectfully dissent.
20140473-CA 25 2016 UT App 123