Cabell County attorney Russell Cook had suspected for some time that the state law on prostitution was being misapplied, but he had trouble finding a case to challenge the statute. Then he was assigned as the public defender for Belinda Ann Fuller.

Fuller was charged with third-offense solicitation in Huntington in 2015, a felony punishable by one to three years in prison. First and second offenses are misdemeanors. Fuller was allowed to plead guilty in Cabell County Circuit Court with the provision that Cook would appeal her case to the state Supreme Court to challenge the law.

Cook pointed out to the Justices that the specific language in West Virginia Code 61-8-5(b) on third offense referred to the pimp, not the prostitute. “The subsequent offense (third or more) shall apply only [emphasis added] to the pimp, panderer, solicitor, operator or any person benefiting financially or otherwise from the earnings of a prostitute,” reads the statute.

The majority on the high court agreed, and in a 3-2 decision** the court overturned Fuller’s conviction.  Justice Menis Ketchum, writing for the majority, said the language was ambiguous and when construing an ambiguous criminal statute, leniency must be given to the defendant.

“The felony third offense provision does not expressly apply to a prostitute,” Ketchum wrote, “Rather it expressly applies to third parties benefiting from the earnings of a prostitute.”

(Justices Ketchum, Davis and Workman ruled in favor of Fuller. Justices Loughry and Walker dissented.)

Ketchum suggests in a footnote that the original prostitution statute, which was adopted in 1882 and was last amended in 1943, needs updated. “The Court would welcome direction from the Legislature clarifying the third offense provision.”

Why was the law crafted that way in the first place? Cook theorizes it dates back to the days of “houses of ill fame” when Legislators may have been more interested in punishing the operator of the establishment rather than the women who worked there.

Cook believes felony punishment for prostitution is a mistake. “Do we really want to use the resources of the state to put a $25 prostitute in prison for three years?” Cook asks. “They come out with a felony prostitution conviction and now they have to support themselves. They can’t find a job and then it’s an issue of recidivism.”

The high court’s decision could have broader implications. Cook says there could be other individuals in prison on a felony prostitution conviction who now have grounds for appeal.

Meanwhile, the ruling has caught the eye of legal observers in West Virginia, who point out the significance of a court appointed defender and a prostitute mounting a case strong enough to change the law.

Fuller, 44, is currently being held in the Tygart Valley Regional Jail for a parole violation. Cook says Fuller is “obviously pleased” with the Supreme Court’s decision.

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