Inducing Minor for Prostitution G. L. c.272, § 4A

Recently the Appeals Court addressed G. L. c.272, § 4A (Inducing minor into prostitution) and distinguished it from G. L. c. 272, § 2 (enticement) and G. L. c. 272, § 4 (induce “any person under 18 years of age of chaste life to have unlawful sexual intercourse”) in COMMONWEALTH vs. DIANA MATOS 78 Mass. App. Ct. 578 (2011). Essentially, the court stated that the statute of Inducing a minor into prostitution necessitated that it be more than one occurrence or single transaction and if it is, then the Enticement statute applies instead. In a pivotal statement in the case it stated “It is for the Legislature to decide whether a statute should be enacted that makes it a crime to induce a minor over the age of sixteen to engage in a single act of sex for a fee.”

The decision is interesting for the interpretation of the statutes. In deciding it stated “Discussion of G. L. c.272, § 4A, which clearly expresses the Legislature’s intent to penalize a person for inducing a minor, who is not then so engaged, to engage in the commercial enterprise of prostitution by offering for hire his or her body for indiscriminate sexual activity. At the trial of indictments charging, inter alia, inducement of a minor to become a prostitute, the judge erred in instructing the jury that the Commonwealth need only provide proof beyond a reasonable doubt that the defendant or a joint venturer did induce the minor to engage in an act of prostitution, and that it was not necessary for the Commonwealth to prove beyond a reasonable doubt that the minor had never before engaged in prostitution, where the instruction removed from the jury the crucial element whether the minor was already engaging in prostitution at the time she was induced to do so by the defendant, alone or acting as a coventurer; further, the error was not harmless, where there was strong contrary evidence that the minor had already resumed prostitution, and no evidence that it was the defendant who had induced the minor to do so.
At a criminal trial, the evidence was insufficient to establish that the defend- ant, alone or by aiding and assisting a codefendant, induced a minor to become a prostitute; however, the evidence was sufficient to convict the defendant of deriving support from the earnings of the minor’s prostitution, and of contributing to the delinquency of the minor.
2. Discussion. a. Construction of inducement statute. The relevant portion of G. L. c. 272, § 4A, provides as follows: “Whoever induces a minor to become a prostitute, or who knowingly aids and assists in such inducement, shall be punished . . . .” The Commonwealth argues that this language must be read to prohibit “conduct that induces a child to engage in an act of prostitution,” regardless whether the minor is currently engaged in prostitution. It finds support for this view not in the language itself, but in reliance on what the Commonwealth asserts is the Legislature’s intended policy of protecting juveniles “from pimps who seek to prey on them,” as manifested in the entire context of G. L. c. 272.
As the Commonwealth points out, c. 272 includes a number of provisions that punish those who victimize minors. For example, G. L. c. 272, § 4B, the “pandering” statute, makes it a crime to derive support or maintenance “from the earnings or proceeds of prostitution committed by a minor,” or to share in such earnings or proceeds. See G. L. c. 272, § 2 (crime to “entice or take away a person from the house of his parent or guardian or elsewhere, for the purpose of prostitution or for the purpose of unlawful sexual intercourse”); G. L. c. 272, § 4 (crime to induce “any person under 18 years of age of chaste life to have unlawful sexual intercourse”); induce “any person under 18 years of age of chaste life to have unlawful sexual intercourse” (crime to commit “any unnatural and lascivious act with a child under the age of sixteen”); G. L. c. 272, § 53A(b) (crime to pay, agree to pay, or offer to pay “any person with the intent to engage in sexual conduct with a child under the age of [fourteen],” or to be paid “in return for aiding a person who intends to engage in sexual conduct with a child under the age of [fourteen]”). The Commonwealth further notes that punishment for sexual offenses that target minor victims is generally greater than for sexual offenses against adult victims, thus “providing additional safeguards against the victimization of minors,” Commonwealth v. Baker, 17 Mass. App. Ct. 40 , 42 (1983), and furthering a policy of treating criminal conduct involving the sexual exploitation of children as more serious than when the same conduct involves adults.
We agree that the Legislature has expressed a clear intent to protect children from sexual exploitation by adults, not only in c. 272, but in legislative enactments appearing throughout the General Laws. The defendant was not indicted under any of these statutes, and we are constrained to determine only whether the defendant’s conduct violated the plain language of G. L. c. 272, § 4A.
The Commonwealth’s policy-based argument requires that we ignore the phrase “to become a prostitute” and insert in place thereof the phrase “to engage in an act of prostitution.” “We decline to adopt an interpretation that ignores words and phrases of the statute. ‘[E]very word in a statute should be given meaning,’ and no word is considered superfluous.” Commonwealth v. Disler, 451 Mass. 216 , 227 (2008), cert. denied, 129 S. Ct. 480 (2009), quoting from Matter of a Civil Investigative Demand Addressed to Yankee Milk, Inc., 372 Mass. 353 , 358 (1977), and citing Casa Loma, Inc. v. Alcoholic Bev. Control Commn., 377 Mass. 231 , 234 (1979). We must consider the words of the statute employed by the Legislature to see if their meaning is clear. If the words could be said to be ambiguous, we would construe them applying the “rule of lenity” and resolve any ambiguities in the phrase in favor of the defendant. See Commonwealth v. Constantino, 443 Mass. 521 , 525 (2005); Disler, supra at 228.
The words “prostitution” and “prostitute” are defined by our decisional law and have turned on the “common understanding for the definition” of these terms. Commonwealth v. Walter, 388 Mass. 460 , 463 (1983), citing Commonwealth v. King, 374 Mass. 5 , 12 (1977). In King, a prostitute was defined as “one who permits common indiscriminate sexual activity for hire, in distinction from sexual activity confined exclusively to one person.” Id. at 12. Prostitution was characterized as “commercialized sexual activity” that legislation seeks to suppress. Id. at 12 n.5. See Commonwealth v. Cook, 12 Met. 93 , 97 (1846) (defining prostitution as “common indiscriminate sexual intercourse, in distinction from sexual intercourse confined exclusively to one individual”).
The Commonwealth is concerned that if the statute is interpreted according to its plain meaning, the word “prostitute” will be viewed as a status which is retained even if a person ceases to engage in the conduct of prostitution. Thus, the Commonwealth claims, unless punishment is for a single act of prostitution, it will be a defense that the minor has the status of a prostitute, even if he or she does not currently engage in acts of prostitution. We disagree. As discussed in King, supra at 15 n.9, the phrase ” ‘prostitutes . . . may be punished,’ [prescribes] penalties for persons who commit acts of prostitution rather than for persons with the status of prostitute.” See Commonwealth v. Sefranka, 382 Mass. 108 , 113-114 (1980) (offense of prostitution “can be used to punish defined conduct only, and not to punish status”). Thus, the statute refers to conduct — acts of prostitution — and a person may cease to engage in such conduct.
We next consider the meaning of the words “to become” in the language at issue. G. L. c. 272, § 4A. In the absence of a statutory definition, ” ‘we give [the words] their usual and accepted meanings, as long as these meanings are consistent with the statutory purpose. . . . We derive the words’ usual and accepted meanings from sources presumably known to the statute’s enactors, such as their use in other legal contexts and dictionary definitions.’ ” Commonwealth v. Zubiel, 456 Mass. 27 , 32 (2010), quoting from Commonwealth v. Zone Book, Inc., 372 Mass. 366 , 369, (1977). Webster’s New Universal Unabridged Dictionary 164 (1983) defines the verb “become” as follows: “to pass from one state to another; to enter into some state or condition, by a change from another state or condition, or by assuming or receiving new properties, additional matter, or a new character.”
We think that the language of the statute is plain and unambiguous and that it clearly expresses the Legislature’s intent to penalize a person for inducing a minor, who is not then so engaged, to engage in the commercial enterprise of prostitution by offering for hire his or her body for indiscriminate sexual activity. We are hard pressed to locate in the wording of § 4A any Legislative intent to make it a crime to induce a minor to engage in a single act of sex for a fee. The Legislature rationally could have decided that inducing a minor who is not currently a prostitute to become one warrants separate punishment.
This is confirmed by our observation that other enactments of the General Laws, discussed supra, make it a crime to entice or induce a minor to engage in sex for a fee. See, e.g., G. L. c. 265, § 26C (penalizing one who entices a child under sixteen to enter a “vehicle, dwelling, building, or other outdoor space” with the intent that another person will engage in sexual conduct for a fee with the child); G. L. c. 272, § 53A(b) (crime to be paid “in return for aiding a person who intends to engage in sexual conduct with a child under the age of [fourteen]”). These provisions require that the child induced or enticed to engage in sex for a fee must be under the age of sixteen. It is for the Legislature to decide whether a statute should be enacted that makes it a crime to induce a minor over the age of sixteen to engage in a single act of sex for a fee.

3. Conclusion. Based on the foregoing, we reverse the conviction of inducing a minor to become a prostitute and set aside the verdict; judgment is to enter for the defendant. The judgments on the defendant’s convictions of deriving support from or sharing the earnings of a prostitute and of contributing to the delinquency of a minor are affirmed. So ordered.”

Attorney Ronald A. Sellon

About Attorney Ronald A. Sellon

Ronald A. Sellon is a licensed Attorney in the state of Massachusetts and U.S. District Court, Massachusetts as well as a Sergeant with a Municipal Police Department and U.S. military Veteran. Additionally, he has taught Criminal Procedure at the Massachusetts State Police Academy in New Braintree and has written a text on Criminal Procedure for police field training officer programs. He is a graduate of the FBI National Academy, was a 2008 recipient of the Massachusetts Coalition of Police (Mass C.O.P.) Presidents award and holds a Bachelors Degree in Law Enforcement, a Masters Degree in Criminal Justice Administration, and a Juris Doctor Law Degree. Questions related to content material may be directed to RSellon@PoliceLegalPromotions.com
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