The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Say you're a lawyer, and state bar rules ban you from having sex "with a current client." What if you're having a three-way sexual encounter with your current client and the client's girlfriend? Is that having sex "with" the client, because you and the client are having sex together (much like you might be going skiing "with" a friend)? Or is it not, because you and the client are not actually physically stimulating the other?
Not a hypothetical! These are the facts of a real case, In re Disciplinary Proceedings Against Inglimo, decided in 2007 by the Wisconsin Supreme Court:
The relevant language of SCR [Wisconsin Supreme Court Rule] 20:1.8(k) is as follows:
(k)(1) … (i) "Sexual relations" means sexual intercourse or any other intentional touching of the intimate parts of a person or causing the person to touch the intimate parts of the lawyer…. (2) A lawyer shall not have sexual relations with a current client unless a consensual sexual relationship existed between them when the lawyer-client relationship commenced.
The referee found that Attorney Inglimo engaged in sexual relations with L.K.'s girlfriend while she was doing the same with L.K. The OLR [Office of Legal Regulation] essentially argues that the word "with" in SCR 20:1.8(k)(2) connotes a temporal and spatial connection. According to the OLR, as long as the lawyer and the client are both participating in a sexual act at the same time in the same place, they are having sexual relations "with" each other….
On this issue, we concur with the referee's conclusion [that Inglimo did not violate the rule]. The definition of sexual relations in SCR 20:1.8(k)(1) connotes conduct directly between the lawyer and the client. When the definition refers to touching, the rule speaks of the lawyer intentionally touching the intimate parts of "a person," but the subsequent alternative definitional phrase uses the more definitive "the person" when referring to a situation in which the lawyer causes the touching to be done to him/her….
Further, SCR 20:1.8(k)(2) prohibits a lawyer from having "sexual relations" "with a current client." Thus, the definitional language of SCR 20:1.8(k)(1) and the prohibition of SCR 20:1.8(k)(2) together clearly indicate that the prohibited "sexual relations," whether intercourse or touching, must be intentionally done between the lawyer and one particular person, namely the client…. [B]ecause it does not appear that the definitional elements of "sexual relations" have been satisfied, the simple term "with" in the prohibitional phrase in SCR 20:1.8(k)(2) cannot transform this situation into a violation of the rule.
I bring this up nine years later partly because it's the sort of bizarre legal story I like (really, who would have thought the Wisconsin Supreme Court would have to decide that?) but also because the "depends upon the meaning of 'with' " question just came up in another sex case, this one a solicitation case from last Friday in Utah, State v. Hawker (Utah Ct. App.):
A detective came across an internet advertisement for escort services that showed a "scantily dressed" woman "in seductive pos[es]." 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…. When Defendant arrived in the motel parking lot, the caller introduced himself, informed the Defendant that he was a detective, and arrested Defendant for agreeing to "masturbat[e] with a sex toy for money." … Defendant was charged with … sexual solicitation….
Now sexual solicitation is defined, in part, as meaning "offer[ing] or agree[ing] to commit any sexual activity"—including "masturbation"—"with another person for a fee." So was agreeing to masturbate in front of someone for a fee "sexual activity" with the person? No, says the lead opinion (you can read the full decision to also see the concurrence and the dissent):
The term "with" has two possible meanings in this context. It can connote "one that shares in an action," or it can mean "accompaniment or companionship." Webster's Third New Int'l Dictionary 2626 (1993). If the former definition applies, Defendant did not violate [the relevant provision], because there was never an agreement that the detective would manipulate the toys or otherwise actively participate in the act of masturbation. But if the latter applies, the result is different because Defendant agreed to masturbate while in the detective's company.
To determine which variant of "with" this statute employs, it is appropriate to consider the other forms of sexual activity mentioned in the statute. "The several provisions of the statute should be construed together in the light of the general purpose and object of the act and so as to give effect to the main intent and purpose of the legislature as therein expressed." … [The definition of sexual behavior] contains a list of behaviors that, under [the solicitation statute], may not lawfully be engaged in "with another person for a fee." These behaviors, "so used together and directed toward the same objective [,] … should be deemed to take character and meaning from each other." …
[T]he sexual solicitation statute must be read to prohibit receiving or agreeing to receive payment for acts that are of the same sort, or "of equal magnitude." The list set forth in [the definition of sexual activity] includes … [genital, oral, and anal sex -] necessarily a two-person activity. [None] of these categories of conduct involves one person acting and another person watching.
In other words, for these types of sexual activity to be prohibited under subsection (1)(a), "with" must mean that the other person is joining in the activity and not merely there as company or a very small audience. Construing like terms together, "with" must mean the same when applied to masturbation. It is therefore not enough, under subsection (1)(a), that someone agrees to masturbate on her own for a fee while another person is present. Because this is precisely what Defendant agreed to do, her agreement did not violate [the relevant provision of the solicitation statute].
There's more—the statute, and the decision, are both complicated—but this should get you a sense of the "with" debate. Things lawyers argue about …