Does Utah's sexual solicitation statute require active participation by multiple parties? State v. Hawker Explained

In State v. Hawker, the Utah Court of Appeals addressed a critical question of statutory interpretation regarding Utah’s sexual solicitation statute. The case arose when a detective, responding to an escort advertisement, arranged to pay defendant to masturbate with a sex toy while he watched. The central legal issue was whether this conduct violated Utah Code section 76-10-1313.

Background and Facts

A detective contacted defendant through an escort advertisement and requested that she masturbate with a sex toy while he watched for $250-300. When defendant arrived at the agreed location, the detective arrested her for sexual solicitation. Defendant conditionally pled guilty while preserving her right to challenge the district court’s legal interpretation that her conduct violated the statute.

Key Legal Issues

The court examined whether defendant’s conduct violated Utah Code section 76-10-1313(1)(a), which prohibits offering to “commit any sexual activity with another person for a fee.” The dispositive question was the meaning of “with” in this context—whether it requires active participation by both parties or merely presence during the activity.

Court’s Analysis and Holding

Applying principles of statutory interpretation, the court examined the statute’s other prohibited activities, including sexual intercourse and contact between specified body parts of different people. The court concluded these activities necessarily require active participation by multiple parties. Using the canon that similar terms in a statute should be construed consistently, the court held that “with” requires active participation, not mere observation. The court also examined the legislative history of subsection (1)(c), finding it was designed to prevent prostitutes from requiring customers to expose themselves to identify undercover officers.

Practice Implications

This decision establishes important boundaries for sexual solicitation prosecutions in Utah. Practitioners should carefully analyze whether alleged conduct involves active participation by multiple parties or solo performance for observers. The court’s emphasis on statutory construction principles and legislative intent provides a framework for challenging similar charges where the conduct falls at the margins of the statute’s scope.