BENSALEM, Pa.—The Superior Court of Pennsylvania has overturned the 2010 attempted prostitution conviction of Susan Finkelstein, the 45-year old married woman who placed an ad on Cragislist in 2009 saying she was desperate for tickets to see her Philadelphia Phillies in that season’s World Series, and was subsequently arrested by undercover officers after arranging to meet a man with whom she allegedly agreed to have sex in exchange for tickets to see the Phillies play the Yankees. The Yankees eventually beat the Phillies 4-2.
The Craigslist ad placed by Finkelstein made no mention of sex, but could have been interpreted as implying something naughty. It read:
"DESPERATE BLOND (sic) NEEDS WS TIX (Philadelphia). Diehard Phillies fan—gorgeous tall buxom blonde—in desperate need of two World Series Tickets. Price negotiable—I'm the creative type! Maybe we can help each other! S."
As AVN reported at the time, the police noticed the ad and decided to contact the woman and set up a sting operation.
“Police said Finkelstein didn't particularly look like a diehard Phillies fan when she met them, lacking the typical Phillies regalia,” reported a local paper. “And she wasn't chit-chatty about baseball, offering no predictions on tonight's pitching duel between Cliff Lee and CC Sabathia or anything else.”
According to the police report and subsequent testimony, however, Finkelstein “told the officer that she was willing to have sex for the tickets, including anal sex, and that she would do anything for a second ticket, including having sex with the officer’s brother, in exchange for his second ticket or having sex with both of them simultaneously.
“Defendant then proposed going to the brother’s house, where the exchange could occur. Defendant punctuated the proposal by spreading her legs, allowing [Sergeant Bugsch] to look under her skirt, where she was not wearing underwear. She then asked the officer ‘if he wants to touch it.’
“[Sergeant Bugsch] told Defendant to wait while he called his brother to see if he was interested. Instead, he contacted the other observing officers, who then arrested Defendant for prostitution.”
Finkelstein denied that account of the meeting but a jury nonetheless found her guilty of attempted prostitution in March 2010 and she was sentenced to a year of probation and 100 hours of community service. She appealed, and Tuesday, the Superior Court agreed with the facts of the case as alleged above, but overturned the conviction anyway, finding that Finkelstein’s attempt to exchange sex for World Series tickets did not meet the requirements of Pennsylvania’s law against prostitution, which defines prostitution as, in part:
§ 5902. Prostitution and related offenses
(a) Prostitution. A person is guilty of prostitution if he or she:
(1) is an inmate of a house of prostitution or otherwise engages in sexual activity as a business; or
(2) loiters in or within view of any public place for the purpose of being hired to engage in sexual activity.
“Thus,” the court reasoned, “a person might be said to have attempted prostitution if she took a substantial step toward engaging in sexual activity as a business. In this case, that step consisted of Finkelstein’s offer to engage in sex as payment for baseball tickets; the record offers no evidence of other conduct.”
Considering the totality of the facts presented to it, the court determined that Finkelstein’s actions, even if they happened exactly as alleged by the police, did not constitute a business.
“Our cases have made clear that the conduct in which Finkelstein engaged here does not fall within the ambit of Prostitution and, consequently, cannot be the subject of an Attempt conviction,” the opinion read, adding, “This Court has acknowledged that the Crimes Code’s prohibition of Prostitution is marked by a lack of precision, as a consequence of which its application has been subject to ‘common understanding and practice.’”
The opinion continued, “We have recognized accordingly that ‘the gravamen of the offense is not the sexual activity itself but the business of engaging in such activity for hire.’ (Commonwealth v. Danko) Thus, neither promiscuity and its moral implications, nor the sex act itself offer grounds for arrest and conviction.”
The opinion concluded, “The legislative objective in criminalizing prostitution is not to criminalize ‘private illicit sexual relations,’ but rather to curtail the deleterious effect of an open commercial sex trade on public health and law enforcement, as well as to avoid the exploitation of women. None of the evidence in this case implicates these concerns and Finkelstein’s conduct did not exceed the ambit of ‘private illicit sexual relations.’ Indeed, Susan Finkelstein appears as the embodiment of ‘a girl not generally engaged in commercial activity [who] nevertheless consents to have intercourse on a particular occasion in exchange for a promised reward.’ Under these circumstances, we conclude the Susan Finkelstein’s conviction of Attempt exceeds the lawful scope of our statutory prohibition of Prostitution and cannot be sustained.”
We can’t confirm the following, but rumor has it Finkelstein and her husband, who ended up seeing game 3 of the 2009 Series courtesy of a local radio station, are also mad fans of ColdPlay, which is performing at the Wells Fargo Center in Philadelphia July 5, 2012. It’s a ways off, but if anyone has any tickets they want to legally exchange for sex…
The reversal can be read here.