Masturbation Not a “Protected Activity,” Judge Rules

Masturbation will not make you go blind. Legal arcana related to masturbation, however, could do just that.
In San Francisco, the “Masturbatathon” is a cherished, local tradition: Men and women are sponsored to jerk and thrust for as long as they can in order to raise funds for a worthy (and, no doubt, sex positive) cause. In Utah, however, a judge last week ruled that masturbation is not “protected conduct.” Along with a bevy of other fantastically specific practices — be patient, we’ll get to them — fee-based jerking off is fair game for the state’s tougher new anti-prostitution laws.
Since masturbation for money is now verboten, it remains to be seen if a Masturbatathon-type fund-raiser would be legal in Utah.
The ruling was in response to a lawsuit filed last year by a trio of escort services, among them the incomparably named “Bushco.” The escorts hoped for a judgment that the state’s new laws aimed at combating prostitution are unconstitutionally vague, overly broad, and violate the right to free speech (Pun alert: “Oral arguments;” “seminal” rulings; and “Subsection (1)(c) satisfies all four prongs of the O’Brien test.”).
For the escort services, it was not the sexiest ruling.
District Court Judge Dee Benson did, however, find the following passage to be unconstitutional in its vagueness:

An intent to engage in sexual activity for a fee may be inferred from a person’s engaging in, offering or aggreeing (sic) to engage in, or requesting or directing another to engage in any of the acts described in Subsection (1)(c) under the totality of the existing circumstances.

Not only did Benson critique this section as “circular, unnecessary, and mere surplusage,” she found the phrase “under the totality of existing circumstances” to push it into the realm of the unconstitutionally vague. Utah police had pushed for this clause to get around the status quo, in which prostitutes ask potential customers to engage in some manner of sexual activity — knowing undercover cops are forbidden to do so. But, per the court, “under the totality of the existing circumstances” leaves the law “open to personal interpretation by a police officer, which will inevitably result in ‘arbitrary and discriminatory enforcement.'”

At this point in the ruling, the plaintiffs may have been anticipating a happy ending. It was not to be. While the aforementioned section will be stricken from Utah law, Benson found the newer, tighter definition of sexual activity to pass muster. Here’s what passes for a good time in Utah:

A person is guilty of sexual solicitation when the person . . . with intent to engage in sexual activity for a fee or pay another person to commit any sexual activity for a fee engages in, offers or agrees to engage in, or requests or directs another to engage in any of the following acts: (i) exposure of a person’s genitals, the buttocks, the anus, the pubic area, or the female breast below the top of the areola; (ii) masturbation; (iii)touching of a person’s genitals, the buttocks, the anus, the pubic area or the female breast; or (iv) any act of lewdness.

Far from being “unconstitutionally vague,” the judge found this to be remarkably specific and understandable. After reading this, “A person of ordinary intelligence would be on notice of what conduct is prohibited … [The law] also provides a clear legal standard for those who will enforce the statute.”
Benson went on to rule that masturbation for a fee is not a protected activity and, therefore, “Subsection (1)(c) does not infringe on a substantial amount of protected speech.” Overall, cracking down on the sexual activity listed in Utah’s law “does not infringe on expression protected by the First Amendment.”
Sigh. No more fees paid for “touching of a person’s genitals, the buttocks, the anus, the pubic area or the female breast.” Console yourself by observing the riders of the bar’s mechanical bull.

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