"Prosperity always inflates the imprudent, and worldly peace weakens the vigor of the soul." - Peter Abelard

Thursday, August 18, 2011

Was Officer's Conduct In Wellesley Sting Operation Appropriate?

This is part two of a two-part investigative story published in the August 18th issue of The Wellesley Townsman. The stories investigate a undercover prostitution bust made by Wellesley police and NORPAC detectives on Aug. 11, and the subsequent fallout from that bust. This part of the story was co-written with Teddy Applebaum, a reporter with The Brookline TAB.  The story has since been picked up by Boston Channel 5 (WCVB) and can be read here.

The building, 120 Cedar Street, that housed the Aroma Spa Massage, where Aiying Qiao was arrested on Aug. 11. Photo by Rhys Heyden.
 WELLESLEY, Mass. - - An undercover officer who allowed his genitals to be massaged by a woman who was the target of a prostitution sting operation may have gone too far, according to a criminal defense attorney.

Aiying Qiao, 52, who was arrested on Aug. 11 during a prostitution sting at 120 Cedar St., was facing several charges, including keeping a house of prostitution, before the case was dropped late Wednesday afternoon by the Norfolk County District Attorney’s Office.

Peter Elikann, a Boston criminal defense attorney with over 30 years of experience with prostitution cases, told the Townsman that sexual contact like what Domenic Tiberi allegedly allowed is “extraordinarily unusual.”  Tiberi is a detective with the Norfolk County Police Anti-Crime Task Force.

“Generally speaking it’s enough for the alleged prostitute or masseuse to simply solicit and to make the offer,” he said.  “Once there is an agreement to commit the crime that’s all that is needed to make an arrest.”

“There’s absolutely no requirement that they have to consummate the act or that the person has to be touched illegally,” he continued. “In all my years I haven’t heard of an instance like this.”

According to the police report, Tiberi obtained a non-verbal agreement from Qiao regarding sexual services to be performed, and then paid Qiao $100. After a 45-minute massage, a nude Tiberi paid Qiao an additional $40, which she accepted, and sexual contact ensued.

Early on Wednesday, before the charges were dropped, Police spokesperson Lt. Marie Cleary said she wouldn’t comment on the incident because it’s department policy not to discuss open investigations. Deputy Chief Bill Brooks, who was involved with the sting, was on vacation.  Police Chief Terrence Cunningham defended the operation, saying case law supported it.

Cunningham said later in the day he had not yet had an opportunity to talk with the D.A.’s office about why the case is no longer pending.

According to Elikann, generally an undercover officer will simply discuss a desired sex act with the alleged prostitute, and once they reach an agreement, make the arrest.

And, he said, to avoid claims of entrapment the best practice is to wait for the alleged prostitute to bring the illegal act on his or her own, instead of having the officer raise the idea. According to reports officer Tiberi first breached the idea by asking Qiao if she would “take care of him.”

“Generally you want the masseuse to be the one to make the suggestion rather then you,” Elikann said. “In all the cases that I’ve seen that’s how it generally works.”

In fact, for prosecution purposes the officer will generally try to get the suspect to clarify exactly what they plan to do, and for how much it will cost, during that initial conversation, Elikann said.

“It’s usually put in so many words,” he said. “If the masseuse were to suggest [the act] very subtly at the beginning the police officer will want a little bit more clarification.”

In summation, Elikann said the situation was definitely odd.

‘This is a first,” he said.


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