We’ve talked previously about the actus reas requirement of crime. A crime cannot be committed unless there is a guilty act. Therefore, a person can’t be arrested for “being” a drug addict, a homeless person, or a prostitute. But a person could be arreted for being under the influence of drugs, for loitering or trespass, or engaging in an act of prostitution.
When police officers working in Vice squads crack down on prostitution, they often do so undercover. They must reach an agreement and then exchange money in order to prove the actus reas of prostitution. That’s not always easy because prostitutes are wary of undercover officers. They want the officer to do something to prove that they aren’t an officer such as touch a part of their body (such as her breast) or even unzip their pants and expose themselves. If an undercover officer refuses to do so, the prostitute will refuse to come to an agreement and take money because they want to avoid getting arrested. It’s a fine line that officers must walk.
Let’s read Harwell v. State (I’ve included it below – if you have the 4th Ed. of our book, you’ll find it in the book).
Then answer the following questions.
1. Do you think there was an “agreement” between the defendant and the undercover officer? What facts indicate that there was arguably and agreement?
2. Should a specific price have to be agreed upon?
3. What did the court ultimately decide? Do you agree with the court?