As NY criminal defense attorneys and former Manhattan prosecutors, my partner and I at Crotty Saland PC have seen a whole lot of “interesting things.” Usually, with a little research and effort, we can find the answer to the vast majority of issues and questions we are confronted with. However, the analysis of Natalie Dylan’s auctioning of her virginity is definitely the first time (and I guess last and only for her) I have ever come across something like this. So, the question that stands out is whether this is Prostitution and Escorting in “sheep’s clothing” or a legal and fine “transaction?”
As I have explained before, Prostitution occurs if you engage or agree or offer to engage in sexual conduct with another person in return for a fee. What complicates this matter is that obviously Ms. Dylan is not in NY so the laws of her state are different. But, what about the person who makes an offer or has an acceptable bid (I’m guessing it will take at least $3.5 million dollars, a toyota prius, a bag of Snyder’s Pretzels and a romantic dinner date with Larry Flynt)? Is that person guilty of Patronizing a Prostitute? One is guilty in NY of Patronizing a Prostitute when, among other things, he solicits, offers, or agrees to have sexual conduct with another person in exchange for a fee.
While there may be interesting ways to defend each person’s actions, on its face it appears that if these two folks were in NY they would be in real trouble. That being said, she is in San Diego and consummating the deal in a Nevada county where this is legal.
Because this issue has never come up before and the courts have not ruled on this (at least I am not aware of it) it is difficult to give a definitive answer. The strongest guidance is to look at sections of the law that are applicable to this question and answer assuming the bidder or the “winner” was a New Yorker. In this case, that would be CPL 20.30. CPL 20.30 states as follows:
1. Notwithstanding the provisions of section 20.20, the courts of this state do not have jurisdiction to convict a person of an alleged offense partly committed within this state but consummated in another jurisdiction, or an offense of criminal solicitation, conspiracy or attempt in this state to commit a crime in another jurisdiction, or an offense of criminal facilitation in this state of a felony committed in another jurisdiction, unless the conduct constituting the consummated offense or, as the case may be, the conduct constituting the crime solicited, conspiratorially contemplated or facilitated, constitutes an offense under the laws of such other jurisdiction as well as under the laws of this state.
2. The courts of this state are not deprived of the jurisdiction accorded them by section 20.20 to convict a person of an offense defined by the laws of this state, partly committed in another jurisdiction but consummated in this state, or an offense of attempt or conspiracy in another jurisdiction to commit in this state a crime defined by the laws of this state, by the circumstance that the conduct constituting the consummated offense or, as the case may be, the crime attempted or conspiratorially contemplated, does not constitute an offense under the laws of such other jurisdiction.
Confused? Probably, but commentary on this section of the criminal procedure law may guide us a little further. According to Peter Preiser:
“Subdivision 1 of this section limits the scope of CPL ､ 20.20 by providing that New York’s jurisdiction to prosecute an offense partially committed here but consummated elsewhere, or an anticipatory offense (conspiracy, attempt, etc.) having as its object an offense ultimately to be consummated elsewhere, only attaches when the offense consummated, or ultimately to be consummated, in the other jurisdiction is proscribed by the laws of both New York and that other jurisdiction.”
“The following examples given in Judge Denzer’s original commentaries illustrate the reciprocal aspects of this restriction. An agreement contrived in New York to operate a gambling establishment in Nevada, where such conduct is not illegal, is not prosecutable as a conspiracy in New York. Nor, on the other hand, may New York prosecute as a conspiracy an agreement entered into in New York, where sale of a product is not an offense, to engage in such conduct in another state where it is an offense.”
“Subdivision 2 makes it clear that conduct engaged in outside the state for consummation of an offense in New York is not insulated from prosecution in New York by the fact that the offense contemplated is not a crime in the other jurisdiction. Thus, an agreement entered into in Nevada to operate a gambling establishment in New York, together with an overt act committed in New York, is prosecutable as a conspiracy in New York, even though the object conduct would not be criminal if performed in Nevada.”
While the above statute and analysis still does not give an absolute answer, my answer to the question is easier to understand. To error on the side of caution…don’t do it. New York State may not prosecute you for your offer to Ms. Dylan, but as soon as you start engaging in interstate transportation and commerce or you are conducting transactions from state to state through the mail, internet and phone you are asking the federal government to start looking at you.
I may not have answered whether Ms. Dylan’s auction is legal, but it appears to me that there are at least serious legal questions. Hopefully, for her sake, she is not the first human guinea pig or test case. Even if you are not considering auctioning your virginity to the highest bidder, if you have any legal questions that are criminal in nature, contact Crotty Saland PC.