McNeil v. State

RAKER, Judge,

concurring:

I join in the judgment of the Court affirming the judgment of conviction of Petitioner for the crimes of first degree rape, first degree sexual offense, kidnapping and the lesser included offenses. I agree with the majority’s conclusion that probable cause existed to support his arrest, and accordingly, the *424 evidence the police obtained as a result of that arrest was properly admitted into evidence against him. As the majority points out in footnote 4, probable cause to support Petitioner’s arrest exists under any number of Maryland statutes.

To the extent that the majority exercises its discretion to consider the issue as framed by Petitioner, i.e., whether the offense of solicitation for the purpose of prostitution applies to the conduct of a prospective customer, I agree with the majority’s conclusion that the statute includes the customer. However, I do not see the need for its unnecessary discussion of the history of prostitution, and I do not share its approach to the historical presentation and some of the inferences and innuendo it suggests. The plain language of the statute and the comparison between the 1920 statute and the 1916 statute lead to the conclusion that the statute includes the conduct of the customer.

I agree that historically the criminal justice system has treated female prostitutes and the male customers differently. Nonetheless, I would refrain from attempting to recount a historical perspective of this subject. 1 If we are to engage in an historical study to answer the question presented in the certiorari petition, i.e., that of the treatment of the customer under the statute, we should focus on the treatment of the customer throughout history, and not the salesperson. I agree with the observation of Ruth Rosen in The Lost Sisterhood, that the “subject of prostitution .... can function as a kind of microscopic lens through which we gain a detailed magnification of a society’s organization of class and gender: the power arrangements between men and women; women’s economic and social status.... ” R. Rosen, The Lost Sisterhood: Prostitution in America, 1900-1918 at xii (1982). She noted, in my view, correctly, that “writing history from ‘above’—from the perspective of reformers who attempted to *425 eradicate prostitution—would offer a fascinating but class-biased and one-sided picture of prostitution.” Id. at xiii.

Having made the determination to look at the history of prostitution, it is important to explore the perspectives of the feminists and indeed, the prostitutes, “in order to achieve a broad understanding of how Americans of different classes and different sexes experienced and viewed prostitution.” Id. See, e.g., M. Baldwin, Split at the Root: Prostitution and Feminist Discourses of Law and Reform, 5 Yale J.L. & Feminism 47 , 84 (1992); T. Clements, Prostitution and the American Health Care System: Denying Access to a Group of Women in Need, 11 Berkeley Women’s L.J. 49, 56 (1996); B. Cooper, Prostitution: A Feminist Analysis, 11 Women’s Rts. L. Rep. 99 (1989); H. Fechner, Three Stories of Prostitution in the West: Prostitutes’ Groups, Law, and Feminist “Truth”, 4 Colum. J. Gender & L. 26 (1994); A. Lucas, Race, Class, Gender and Deviancy: The Criminalization of Prostitution, 10 Berkeley Women’s L.J. 47, 49 (1994); A. Stremler, Sex for Money and the Morning After: Listening to Women and the Feminist Voice in Prostitution Discourse, 7 U. Fla. J.L. & Pub. Pol’y 189, 196 (1995). Prostitution is far too complex to be viewed solely from the perspective of the Victorian reformers.

. See C. Chandler, Feminists as Collaborators and Prostitutes as Autobiographers: Deconstructing an Inclusive Yet Political Jurisprudence, 10 Hastings Women’s L.J. 135, 141 ("The claim of ‘merely describing facts' or stating the truth serves as a powerful rhetorical device.”).