By DAVID SHARP, Associated Press
PORTLAND, Maine (AP) — Working on an expedited schedule, the state Supreme Court heard arguments Wednesday on whether prostitution clients who are videotaped without their knowledge during sex acts have a right to privacy under state law.
A prosecutor urged the Supreme Judicial Court to reinstate 46 invasion-of-privacy counts against Mark Strong Sr., who's accused of helping a Zumba instructor run a prostitution business in the seaside town of Kennebunk.
Defense lawyer Dan Lilley said lawmakers never intended to protect prostitution clients or other criminals from surveillance.
The seven-member panel was asked to rule swiftly because jury selection in Strong's trial has been put on hold in York County.
York County Assistant District Attorney Patrick Gordon argued that the state privacy law that protects innocent people in bathrooms and locker rooms also protects people engaging in sex in a private setting.
"No one would argue for a minute that that person didn't expect privacy there. So why would it be any different if money changed hands?" he said.
Chief Justice Leigh Saufley cut him off, pointing out that there's a big difference in sex between "volunteer social companions" and those paying a prostitute for sex.
The entire panel proceeded to jump into the fray with skeptical questions about how far the state should go in conferring privacy rights and whether there should be an expectation of surveillance at certain businesses.
Gordon told the justices that sexual relations are "the most private, intimate thing that people can do" and that the state intended to protect the privacy of those acts. He said the law makes no distinction between paid or unpaid sex.
Jury selection in the trial of Strong, who faces 13 other counts that deal with promotion of prostitution, has been twice delayed by appeals to the state supreme court.
The first dealt with First Amendment issues raised about the closed-door jury selection process. The second deals with the dismissal of the invasion-of-privacy charges.
Fitness instructor Alexis Wright set up the video equipment and Strong watched from his computer, making thousands of still images from the live video stream, Gordon told the justices.
The justices must rule quickly to avoid starting over with a new jury pool because service ends for the current jury pool at month's end.
Wright will be tried at a later date.
Both Strong and Wright have pleaded not guilty.
In addition to arguing that the state law applied to prostitution clients, prosecutors also said that it was up to a jury — not the judge — to decide the charges and that the defense waited too long to seek to dismiss the charges.
Lilley said that the trial judge made the right call and that he could find no other precedent for conferring privacy to prostitution clients.
"Astonishingly and unabashedly, the state of Maine argues that criminals have a protected right to commit the crime of engaging a prostitute in a commercial building under Maine law," he said.
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