Functionally Equivalent of a Fee.

Louis XII of France Kneeling in Prayer, Accompanied by Saints Michael, Charlemagne, Louis, and Denis, 1498/1499, Tempera and gold on parchment, Jean Bourdichon (French, 1457 – 1521)

Previously, as reported, adultery was removed as a misdemeanor in Utah in March 2019.  An observation was that this legalized Prostitution.  But Prostitution is listed as a crime in the Utah statutes, and is basically described as sexual relations, which are defined, in return for a ‘fee or a functionally equivalent of a fee.’   So, assuming a case was brought, how would this crime of Prostitution be prosecuted?

            Remember that adultery between consenting adults is not a crime, so if the specifics of the Prostitution complaint fail, the prosecutor cannot fall back on the adultery crime.  Prostitution has to stand on its on legs, so to speak.

            The specifics of sexual relations are listed in the statute.  We can focus on the ‘fee’.  The statute does not list cash, credit, deposits, legal tender for all debts public and private, or consideration.  Consideration is the classic third prong of an enforceable contract, along with offer and acceptance.  Taught at every law school in first semester Contracts law course.  What about a ‘gift’  between consenting adults?  Not a fee, it is a gift, a kindness, a generosity. What about a ‘loan’ between consenting adults? Still not a fee.

            Centuries ago, Mary Tudor, younger sister of Henry the Eighth, King of England, was a Princess of England, with a pedigree going back into the Anglo Saxon and Welsh mist of time, even to Roman times, and before, back to Adam and Eve. Henry arranged her marriage to the King of France, to solidify an alliance.  Mary, age 18, married King Louis XII of France, as his third bride. Louis had no lawful heir, living sons,  from his previous marriages.   Louis reportedly gave Mary a royal jewel each time he visited her, a gift, but alas, Louis died within 3 months of the wedding attempting to produce his heir.  All at the time attributed that to exertion. The beautiful widow, dowager Queen of France, was to be married off to another selected by first the new king of France, Francis 1,  or by her brother, King of England.  Ultimately, having done her duty for England with a husband 30 years older, Mary married the Duke of Suffolk, but had to give up the jewels given to her by Louis.  Of course, you might say gifts between a married couple are not relevant to gifts to circumvent ‘fee’ in prostitution, but it is an interesting story, nevertheless.

            So back to Adultery.  Is buying a drink, paying for a ticket to a movie,  giving a lift by car,  flowers, compliments, a ‘fee’ to convert a liaison from adultery to prostitution.   How about a necklace, a bracelet?  The term ‘fee’ actually relates to real estate in Anglo Saxon law, as part of the ‘fee simple’. Essentially, ‘fee’ referred to live stock, cattle or deer.  Anciently, if specie was limited or totally unavailable, cattle were used for money.  An example is the story of  Johnny Lingo, who paid to the father of his bride a dower eight cows.    This was in the movie, with the bridegroom bringing the cows through the tropical palms, lined up to be impressive to the father, bride, and all on the island.  The father ends with ‘you cheat me, you cheat me.’

            The fee meaning or definition has evolved to legal fees, contingency fees, medical fees,  license fees, giving it a distinctive professional compensation feel.  When the Utah criminal statute was amended, the term fee  replaced  ‘including barter or trade of goods’.

            What of the ‘functional equivalent of a fee?’  It is a little used recent term in the law.  But it has shown up in odd places.  The state Bar of California used it  to compare the costs of litigation. Rule 1.15 notes [legal defense  fees] ‘in the litigation, this can result in the functional equivalent of a fee forfeiture because the cost of successfully defending the civil contempt action.’  So functional equivalent is used in context of ‘fee forfeiture’.

            The Securities and Exchange Commission ‘views real estate investments that are the functional equivalent of a fee interest in real estate or in a Mortgage Loan as Qualifying Real Estate’ in investment.  The SEC refer to a ‘fee interest’. We have a definition meaning real estate assets.

            In reporting a Court of Appeals Sonnenberg decision, where gamblers sued the online site for losses,  a journalist used this phrase to describe the decision. The term ‘functional equivalent of a fee’ was not used in the case. The journalist said ‘’the wager one pays as the functional equivalent of a fee paid for everyday entertainment.’’ The journalist relates the definition to everyday entertainment.

            In the Court of Appeals Fogleman v ARAMCO, we read ‘’ We agree with Appellants that any ‘enhancement’ of costs is the functional equivalent of a fee.’’ We have another  definition relating to enhancement of costs.

            In using terms we understand, recall the Affordable Care Act which created a ‘mandate’ that all who failed to have qualifying health insurance, would still pay money into the U.S. Treasury. The Obama administration and House and Senate averred it was not a tax.   Google reports 12 million results for a search for ‘individual mandate penalty’.  Upon appeal to the Supreme Court, Justice Roberts majority called the mandate a tax, to uphold its constitutionality.  The mandate was also called in discussions a tax penalty, fee, fine, or individual responsibility payment. 

            Does this mean that if the ‘fee’ in the Utah statute is called a gift, mandate,  or tax, it is undefined, making the transfer legitimate?  This will be the future of litigation over this amendment.

            Utah has created a new term in its criminal statute, that was never used anywhere else in criminal law.  We’ll see how this proceeds.

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