Utah Court of Appeals overturns woman’s conviction on legal analysis of a sex act

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SALT LAKE CITY — The Utah Court of Appeals has overturned a woman’s conviction on a prostitution-related charge, finding the sexual activity she agreed to perform for a fee didn’t break the law because she technically didn’t do it “with” someone.

In a ruling posted over the weekend, a divided state appellate court overturned the drug possession and sexual solicitation conviction of Rychelle Hawker. In 2014, Hawker was arrested in Payson after an undercover police officer responded to an advertisement she posted.

“The detective called the number on the ad and spoke to Defendant, asking her to meet him at a motel. He also requested that Defendant wear a short skirt with no underwear and ‘perform with [a] sex toy’ while he ‘watch[ed].’ Defendant agreed to engage in the requested conduct for $250 for thirty minutes or $300 for one hour. She also asked that the caller ‘pitch in a little bit for gas money’ and told him he could ‘tip for whatever it was worth’ to him,” Judge Gregory Orme wrote in the ruling.

Hawker was arrested in the motel parking lot. She fought the charge, but a Provo judge ruled that Utah law defined it as “a person agreeing to masturbate so that another may watch, for pleasure and in exchange for money, is participating in a sexual activity with that person.” Hawker pleaded guilty with the condition she would appeal.

The Utah Court of Appeals heard arguments last year on the issue of masturbation under state law, and whether Hawker’s conduct violated it. Ultimately, the three judge panel sided with Hawker and hinged some of their definition on the word “with.”

“There can be no doubt that masturbation is sexual activity; indeed, the Utah Code is explicit on this point. And Defendant undisputedly agreed to masturbate for a fee,” Judge Orme wrote. “But the question is not simply whether Defendant agreed to engage in sexual activity for a fee. Instead, the question is whether she agreed to commit that sexual activity with another person for a fee.”

The court disagreed with the Utah Attorney General’s Office that the legislature “has specifically said that masturbation is a prohibited sexual activity.” The judges ruled that “with” requires two people.

“And this is not what Defendant agreed to,” Judge Orme wrote.

Judge Fred Voros agreed with the ruling, but not on the same terms. Judge Stephen Roth issued a dissent to the ruling.

“It is difficult for me to see how paid-for masturbation that involves one actor being compensated for self-masturbating in the presence of another is less grave in terms of the overall objective of the statute than one actor being paid to actually masturbate the other; both versions generate the harm to the participants and our societal fabric that the statute seeks to prevent,” he wrote.

Hawker’s conviction was sent back to the lower courts to be overturned. Her attorney, Libertarian attorney general candidate Andrew McCullough, said she was “very, very relieved.”

“It should never have happened,” he told FOX 13.

Read the Utah Court of Appeals ruling here: