This informational sheet was published on September 3, 2015 by The #HookUp Collaborative, which is not affiliated with any company or organization, but is instead a loose working group of people who have advertised – and people in community with advertisers – on Rentboy.com, including lawyers, community members and organizers.
Nothing in this information sheet substitutes for individual legal advice. If you or someone you know advertised on Rentboy.com, do not discuss anything related to your individual circumstances except in a private consultation with a lawyer. In the event you are contacted by law enforcement, instruct them that you are remaining silent, that you do not consent to a search, and that you wish to speak with an attorney. If you are in New York and are in need direct legal representation or you have questions about a pending case, call the Sex Workers Project at (646) 602-5617 to be connected to an attorney. Being a prospective or actual client of a lawyer is the only way to ensure your statements will be protected by attorney-client privilege.
Rentboy.com is being targeted by the police and people who have advertised their services on the platform are concerned. The federal search warrant that was executed on August 25, 2015 resulted in the seizure of personal information. For instance, the Complaint alleges in ¶ 33 that “Rentboy.com allows payment for advertisements in cash at its office, money order, and credit card.” However there is no internet card processing system and instead an advertiser must fill out a Credit Card authorization form and send it by fax or e-mail to Rentboy.com. It is possible that the servers seized contain this information.
- Am I going to get arrested by federal agents?
It is difficult to predict how the U.S. Attorney prosecuting the case may use the data. With that said, lawyers involved with the #HookUp Collaborative view it as unlikely that this data will be used for additional federal prosecutions. The seven staff members of Rentboy.com are being prosecuted for violations of the Travel Act, specifically interstate and foreign travel or transportation in aid of racketeering enterprises, in this case promoting prostitution. See 18 U.S.C. § 1952(a)(3). It is possible that the prosecutor might amend the charges, or add new defendants, but in any case prosecution for a federal offense requires some connection to interstate or foreign commerce. While the Internet arguably impacts interstate or foreign commerce, it is unlikely that an individual advertiser will be charged with a federal offense merely for being listed as an escort on a third-party advertising platform.
It is also relatively unlikely that advertisers would be added as defendants on the current charges. This is because the Travel Act’s subsection (a)(3)—which governs violations based on prostitution activity—requires that a defendant participated in the business enterprise, meaning that sporadic or short-lived acts of prostitution are unlikely to be targeted by the Act. See U.S. v. James, 210 F.3d 1342, 1345 (11th Cir. 2000)(finding that the government must show “a continuous course of conduct to establish that a ‘business enterprise’ was involved.”). A person is therefore more likely to be charged if they are party to organizing or managing the business, such that they were part of a continuous course of conduct directed toward profit. However, there have been cases in which individual providers or advertisers have been convicted where a sufficient connection to the management of the enterprise was established. But see U.S. v. Postica, 2013 US App LEXIS 25832 (11th Cir. 2013) (affirming four women’s convictions on charges of aiding and abetting and conspiracy to violate the Travel Act because detectives testified that defendants offered to masturbate them in exchange for money when detectives went to spas for massages, the government played wiretaps showing defendants discussing business matters at spas with owner, and defendants were found to travel across state lines to work at several of owner’s spas).
It is also important to note, especially for advertisers outside of New York, that the federal Travel Act charges in the pending prosecution of Rentboy are based on New York State penal offenses, which by their own language apply to persons who manage, supervise, control or own Rentboy.com, or to a person who “advances or profits from prostitution.” See N.Y.P.L. §§ 230.25 & 230.20. A U.S. attorney, however, may base a Travel Act prosecution on violations of any state’s prostitution laws where they are party to organizing or managing the business, such that they were part of a continuous course of conduct directed toward profit.
Even for those who participated or managed promotional events such as The Hookies or HustlaBall, which occurred in multiple states and countries, it would likely be a stretch for the U.S. Attorney to argue that a person “advances or profits from prostitution” or manages a prostitution business simply by participating in an event where that participation was for self-promotion as an advertiser on Rentboy.com. Then again, the definition of “advances prostitution” is very broad under New York law, for example, and includes a person who “operates or assists in the operation of a house of prostitution or a prostitution enterprise, or engages in any other conduct designed to institute, aid or facilitate an act or enterprise of prostitution.”
With this said, based solely on the charges listed in the Complaint filed, it is unlikely that prosecution for Travel Act violations will extend to people who are not managing staff members of Rentboy.com. However, if you have specific concerns, it is advisable to consult with an attorney.
- Am I going to be arrested by New York police?
It is possible—although in our view, unlikely—that the information seized may be forwarded to a local prosecutor for state charges such as Prostitution, which is committed when someone “engages, agrees, or offers to engage in sexual conduct with another person in return for a fee.” Prostitution is a Class B Misdemeanor, an offense that carries up to 90 days in jail.
However, the mere evidence that a person paid to advertise on Rentboy.com is unlikely to be enough to convict a person of a prostitution offense. A conviction would likely require evidence of a particular agreement to engage in “sexual conduct” in exchange for a fee. In New York State, a prostitution offense does not require sexual conduct to be consummated; it can merely be agreed to. The evidence of an “agreement” could be collected in an e-mail, phone or in-person conversation with an undercover or criminal informant. It could also be supplemented with language from your profile that indicates you are seeking to have “sexual conduct” with clients in exchange for a fee (e.g., “I love to top my clients”).
- What is “sexual conduct” for the purposes of New York prostitution offenses?
“Sexual conduct” has been defined by New York courts to include oral, anal, and vaginal physical contact as well as mutual masturbation, and physical contact with a person’s pubic area, buttocks or breasts, whether clothed or unclothed. For instance, even where a dancer “moved around on a person’s lap” while letting him touch her naked breasts and buttocks, a court found that this was “sexual conduct.” People v. Hinzman, 677 N.Y.S.2d 440, 442 (N.Y. Crim. Ct., Bx. Co. 1998). However, certain activities have been excluded from this definition. See, e.g., People v. Greene, 441 N.Y.S.2d 636 (N.Y. City Crim. Ct., 1981) (finding that autoerotic stimulation is not “sexual conduct with other persons”); People v. Georgia A., 163 Misc. 2d 634, 637 (N.Y. City Crim. Ct., 1994)(finding that activity such as domination, submission, foot licking, and spanking are not “sexual conduct”).
- Should I destroy or alter any records, documents or other things that might connect me to the Rentboy.com prosecution?
Absolutely not. There are several federal statutes that cover the tampering or destruction of evidence connected with an ongoing or potential federal investigation. See, e.g., 18 U.S.C. §§ 1510 (felony to obstruct criminal investigations); 1519 (felony to obstruct in contemplation of a possible investigation).
The latter felony charge is the most broad, and this fact sheet will therefore focus on it. The Sarbanes-Oxley Act of 2002 made it a felony offense for a person who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States … or in relation to or contemplation of any such matter or case …” 18 U.S.C. § 1519. This offense may result in a fine, imprisonment not more than 20 years, or both. Even if you do not believe that you possess any “record, document, or tangible object” that might be used to advance the Rentboy.com or other federal investigation or prosecution, it’s advisable to do nothing and to speak with a lawyer. This is because this far-reaching statute includes destroying or altering records, documents or tangible objects because you think there is even a possibility it could be used in a federal investigation or other proceeding.
The definition of “record, document, or tangible object” is also very broad. See, e.g., U.S. v. Kernell, No. 10-6450 (6th Cir. Jan. 30, 2012)(affirming conviction on felony obstruction where defendant made “anonymous” posts on a website forum describing steps he had taken to erase his digital footprints and expressed concerns about interest by the FBI in his actions, and at around the same time, cleared his computer’s Internet Explorer cache, uninstalled the Firefox browser, ran a disc defragmentation program, and deleted images downloaded from the hacked e-mail account); U.S. v. Keith, 2011 US App LEXIS 20231 (7th Cir. 2011) (affirming conviction on felony obstruction where law enforcement agents testified that defendant admitted to deleting and moving files from defendant’s laptop onto flash drive upon seeing agents approach defendant’s house); U.S. v. Fumo, 628 F. Supp.2d 573, 598–99 (E.D.Pa. 2007)(allowing prosecution to proceed against defendant alleged to have destroyed electronic evidence, including e-mail communications, pertaining to federal investigation of which defendant was aware).
- What tax issues might I face as a result of the data seized from Rentboy.com?
It is possible that the U.S. Attorney may turn over information seized from Rentboy to the Internal Revenue Service or to state or local tax authorities. The IRS has information sharing agreements with many state and local tax departments and, even in the absence of such an agreement, under certain circumstances, the IRS will turn information over to state and local tax authorities if they request it or if it chooses to do so.
If a person has been filing income tax returns and reporting their income correctly, this should not be a problem. If a person has not been filing tax returns despite receiving enough income to require such filing, or if they have been filing returns but not reporting all of their income accurately, and they are aware that they should have been filing returns and paying taxes, they are potentially subject to criminal tax prosecution. The penalties for deliberately evading state and local income taxes vary from place to place; a person who willfully evades federal income tax is subject to imprisonment for up to five years and/or a fine of up to $100,000, in addition to having to pay all taxes due plus interest and civil penalties. Willful tax evasion is a felony.
The IRS will generally not bring criminal charges against a person who voluntarily discloses that they have been evading taxes before they are contacted by the IRS about this, but it does not have to apply this policy in all cases and it is possible that some officials or examiners at the IRS might view income from an illegal activity, particularly one such as prostitution, more harshly than income that come from other sources. Many states have written procedures under which a person who voluntarily approaches the state tax authorities before being audited will not be prosecuted for criminal tax evasion, will have to pay taxes for only the current year and a few prior years, and will not be subject to civil penalties. These procedures may not, however, prohibit the tax authorities from disclosing information about illegal activities to law enforcement authorities, so it is possible that voluntarily approaching the tax authorities of a particular state could lead to criminal prosecution for conduct unrelated to taxes.
People who are concerned about the tax implications of the U.S. Attorney’s seizure of Rentboy.com information should consult with tax advisors in their home communities about their particular situations.
- What do I do if I am approached by law enforcement on the street?
When law enforcement tries to get information, but doesn’t have enough evidence to detain or arrest you, they may try to trick information out of you. They may call this a “casual encounter” or a “friendly conversation,” but if you talk to them, you may give them the information they need to arrest you or someone else. In almost every situation, it’s simply better and safer not to talk to law enforcement.
When stopped, ask if you are being detained. If no, tell them you are leaving and walk away. Your statements—including e-mails, forum posts, texts, phone conversations—may also be used as evidence against you that you attempted to conceal or destroy evidence. See, e.g., U.S. v. Beltran, 752 F.3d. 671 (7th Cir. 2014). It is also a crime to make a materially false statement to a federal agent. See 18 U.S.C. § 1001(a)(2). To minimize your risk simply say as little as possible, or if anything, tell them your name and date of birth, but not anything substantial (e.g., where you live, where you are coming from, who your friends are).
- What if law enforcement responds “yes, you are being detained”?
If yes, you may want to ask why. But do not strike up a conversation. Detention means that, though you aren’t arrested, you can’t leave. Police can detain you only if they have reasonable suspicion that you are involved in a crime. Detention is supposed to last a short time and they aren’t supposed to move you. During detention, the police can pat you and your bag down to make sure you don’t have any weapons, but can’t go into your bag without your consent or a lawful arrest. For these reasons, you should always answer by saying a few magic words “I am going to remain silent. I want a lawyer. I do not consent to searches.” These words are important because they trigger certain legal rights that may allow your lawyer to suppress “evidence” collected, so long as you don’t later waive those rights by making statements to the police or granting them consent to search you or your belongings.
- What if I am arrested?
Police can arrest you only if they have probable cause that you committed or will commit a crime. When you are arrested, the cops can search you to the skin and may be able to search your car and any belongings. Regardless, law enforcement may not have achieved probable cause before making the arrest, and you should say “I am going to remain silent. I want a lawyer. I do not consent to searches.” Once you have the opportunity to make a call or speak to a court appointed attorney, contact the Sex Workers Project at (646) 602-5617 if you are in New York so that you can be connected with legal and other support, and so that #HookUp can track any emerging patterns to inform the community of new developments.
- What if I am arrested at home?
If the police come to your door with an arrest warrant, meet them outside and make sure the door is locked behind you. Cops are allowed to search any room you go into, so don’t go back into the house for any reason—not to get your phone, not to feed your pet, not any reason. If they have an arrest warrant, hiding won’t help because they are allowed to force their way in if they know you are there. It’s usually better to just go with them without giving them an opportunity to search your home.
- What if law enforcement presents a search warrant?
If the cops have a search warrant, ask to read it. A valid warrant must have: a recent date (usually not more than a couple of weeks, depending on the jurisdiction), the correct address, and a judge’s or magistrate’s signature, as well as a description of the items to be obtained. You should say “I do not consent to this search” whether or not the search warrant appears correct. If you do not, you may be interpreted to consent to the search. However, do not forcibly block the police’s passage, simply say “I do not consent to this search” and step to the side.
- I’m not a U.S. citizen, should I be concerned?
If you are not a U.S. citizen and are arrested, you need to tell your public defender at your arraignment that you are not a U.S. citizen. Non-citizens include people who are present in the U.S. that are undocumented, have visas or are green card holders. Pleading guilty to many crimes, even small misdemeanors like not paying for the subway, can make a person deportable and may even lead to a person immediately being placed in immigration detention. The best way to protect yourself is to tell your public defender you are not a U.S. citizen. If you are being pressured to take a plea of guilty, and are concerned about immigration consequences, tell your public defender to contact an immigration attorney to ensure there are no consequences to taking the plea. It is your right to wait to take a plea until the public defender has spoken to an immigration attorney to verify that a plea will not have immigration consequences.