Commonwealth v. Dodge
1981 Pa. Super. LEXIS 2673, 429 A.2d 1143, 287 Pa. Super. 148 (1981)
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Rule of Law:
A state law that criminalizes engaging in sexual activity as a business does not violate the constitutional right to privacy, as this right does not extend to commercial activities, and the state has a rational basis for such a regulation.
Facts:
- In June 1978, as part of a prostitution investigation, Pennsylvania State Trooper Louis W. Gentile called Debbie Ross posing as a businessman seeking sexual services for himself and six others.
- Ross quoted a price and instructed Gentile to come to her residence for an identification check.
- After verifying Gentile's identity, Ross directed him to a motel and informed him that a $200 payment was required upfront.
- At the motel, Gentile met the appellant, who was naked.
- The appellant confirmed the $200 upfront fee and agreed to accompany Gentile to his hotel room under the pretense that he needed to get the money from his party.
- At Gentile's hotel room, another trooper, Gerald Fielder, was present.
- After a discussion of the services to be rendered and after Gentile paid the $200, the appellant began to undress.
- Fielder then arrested the appellant, who admitted that she and Ross divided the money evenly.
Procedural Posture:
- The appellant was charged in a Pennsylvania trial court with prostitution and criminal conspiracy.
- Prior to trial, the appellant filed an omnibus pre-trial motion arguing that the prostitution statute was unconstitutional.
- Following a trial, the appellant was convicted and a judgment of sentence was entered.
- The appellant appealed her conviction and sentence to the Superior Court of Pennsylvania, an intermediate appellate court.
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Issue:
Does a state statute that criminalizes engaging in sexual activity as a business violate the constitutional right to privacy?
Opinions:
Majority - Spaeth, J.
No, a state statute that criminalizes engaging in sexual activity as a business does not violate the constitutional right to privacy. The court first dismissed several of appellant's constitutional challenges for lack of standing, as she was only charged with 'engaging in sexual activity as a business' and not with loitering or being an inmate of a house of prostitution. The court held that the right to privacy protects fundamental personal decisions related to marriage, family, and procreation, but does not extend to commercial activities. The challenged statute does not proscribe private sexual activity itself, but rather the business of engaging in sexual activity for hire. Because the law regulates a commercial activity and does not infringe upon a fundamental right, it is subject to rational basis review, not strict scrutiny. The state has a rational basis for prohibiting prostitution, including preventing the spread of venereal disease, combating organized crime, reducing government corruption, and upholding public morals. The legislature, not the court, is the proper body to weigh the policy arguments for or against the decriminalization of prostitution.
Analysis:
This decision clarifies the boundary of the constitutional right to privacy by distinguishing between protected personal conduct and regulatable commercial activity. It establishes that the state's police power to regulate commerce and protect public welfare allows it to prohibit the business of prostitution without triggering the strict scrutiny standard reserved for fundamental rights. The ruling reinforces the principle that laws addressing social and economic issues need only satisfy the rational basis test. This precedent makes it significantly more difficult to challenge anti-prostitution statutes on privacy grounds, requiring future challengers to demonstrate that the law infringes on a recognized fundamental right rather than just regulating a commercial transaction.
