The state must find someone other than undercover police officers to prove that consensual sexual activity among so-called swingers was lewd, a Broward judge set to hear a controversial case next week has ruled.
Circuit Court Judge Gary Cowart, who is scheduled to hear the first of more than 30 cases on Tuesday against men and women arrested for lewd behavior at two Broward swingers' clubs last year, said he would include language to that effect in his instructions to the jury. He made the ruling on Wednesday in response to a defense motion.
Daniel Aaronson, an attorney for Ray Hall, a Fort Lauderdale policeman arrested at Club Trapeze II, said Cowart's decision limits the state's ability to pursue prosecution.
"The state must either drop the charges, appeal or go to trial, " Aaronson said.
Ron Ishoy, spokesman for the state's attorney's office, said the state is "considering" an appeal. Ishoy added that the ruling "is only relevant" in the case against Hall, and in a case against another Trapeze patron defended by attorney Sam Halpern who joined in Aaronson's motion.But Alan Mostow, co-owner of Trapeze II who is among those awaiting trial on the lewdness charges, said the "only thing now for the state to do is drop the charges."
In his motion asking the court to issue a special jury instruction regarding the definition of lewdness, Aaronson noted that a three-judge panel hearing some of the other swinger cases "strongly implied" in its opinions that "someone other than the police [would have to be] offended by the defendant's actions . . . in order to prove the offensiveness element for the lewdness statute."
He asked the court to instruct the jury "That if you find that the only person or persons to be offended were law enforcement personnel acting in their official capacity, you must find the defendant not guilty."
Aaronson also asked the court to instruct the jury that if it finds undercover police who infiltrated the club were the only persons offended - and if the police were told by the club what to expect in terms of sex occurring there - then law enforcement, in effect, consented to viewing the behavior."One cannot be legally offended by another's behavior and conduct, if one consents to viewing it or being present, " the motion said.