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Greenville County’s Perversion of Public Decency Laws

Hayley Horowitz,
ACLU Criminal Law Reform Project
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August 16, 2012

Today the ACLU and the ACLU of South Carolina sent a letter to the Greenville County, South Carolina Sheriff’s Office and the State Solicitor’s Office demanding that the local police department stop violating the constitutional rights of innocent people under the guise of enforcing public decency laws. The letter is aimed specifically at ending Greenville County police officers’ practice of arresting women they suspect of being prostitutes and men who have sex with men, even though they haven’t broken any laws. These arrests violate the Constitution and need to be stopped.

In frequent sting operations, undercover officers approach people parked in their cars, sitting on their own porches or walking down the street and encourage them to engage in prostitution or public sex. Often, the people approached reject the solicitations to engage in illegal activity. Sometimes they decline the officers’ sexual advances altogether, at other times they say they’ll “think about” the offers, and in some circumstances they ask to go somewhere private to have consensual, noncommercial sex. But officers regularly arrest them anyway. Sometimes, officers don’t even bother trying to lure women into having sex, instead arresting them for being “known prostitutes” in areas where prostitution frequently occurs. In several cases, a man or woman asked by an undercover male officer to have sex was arrested and charged with assault and battery after doing nothing more than placing a hand on the officer’s thigh.

The sting operations conducted by the Greenville County Sheriff’s Office are not only often unconstitutional, but involve the harassment and humiliation of people who engage in lawful, constitutionally protected behavior like walking along public roads or asking other adults to have noncommercial sex in private. What’s more, undercover sting operations–even those that do not offend constitutional rights–are an expensive and ineffective way to deter street prostitution and public sex. Sting operations occupy many officers at a time, with some posing undercover, others conducting backup and surveillance, and still others transporting and processing arrestees and arranging for their cars to be towed and impounded. Processing and prosecuting each arrestee costs the public thousands of dollars. And yet this significant investment of resources does not even pay off in the form of increased public safety or reduced crime. Those arrested often cannot be successfully prosecuted because they were entrapped by the police or they never committed a crime.

Even when undercover sting operations do result in successful prosecutions, they at best lead to only temporary reductions or simply displacement of public sex and prostitution. That’s why the U.S. Department of Justice recommends more effective, less expensive short-term strategies to deterring public sex and prostitution, such as posting warnings, increasing visible police presence and improving lighting, combined with long-term solutions to eliminate the causes and risks of illegal sexual activity, such as educating high-risk populations and helping prostitutes to quit. These tools can be more effective than decoy operations at meeting legitimate law enforcement goals, while demanding fewer law enforcement resources and avoiding violations of constitutional rights.

The Greenville County Sheriff’s Office should instruct its officers that they can arrest only when they have probable cause to believe that the state criminal code has been violated, and they must be trained to avoid practices that habitually violate the constitution. It is time to end the false arrests, the unnecessary hassling of people engaged in lawful conduct, and the waste of tax payer dollars.

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