Common Nightwalker

COMMON NIGHTWALKER

This post will answer the following questions on the criminal offense of being a common nightwalker:

  • What is a common nightwalker?
  • How does the Commonwealth prove a defendant guilty of being a common nightwalker?
  • Are police allowed to selectively prosecute female common nightwalkers?

What is a common nightwalker?

Commonwealth law states that “common night walkers…shall be punished…”

A common nightwalker is someone who is abroad at night, soliciting others to engage in unlawful sexual acts. Often it is a prostitute who solicits potential customers on the street.

Common nightwalker has come to mean a prostitute who solicits customers on the street.

How does the Commonwealth prove a defendant guilty of being a common nightwalker?

In order to prove a defendant guilty of this offense, the Commonwealth must prove two elements of the crime beyond a reasonable doubt (BOTH):

  • That the defendant was walking the streets at night
  • That the defendant was attempting to solicit someone to engage in an unlawful sexual act, such as an act of prostitution

Note that solicitation is inferable from circumstantial time, place, and frequency of the defendant’s conduct. For example in one case, Commonwealth v. Proctor (1986), solicitation could be inferred from a defendant’s standing on a corner frequented by prostitutes, speaking with a male motorist, and getting into his vehicle. As the defendant had frequently behaved in this way in the past, testimony vouching for express soliciting conversation with the prospective customer was not required.

Note also that conviction for nightwalking does not require past or multiple acts. Additional evidence of “habitual” activity is not necessary to establish guilt.

Are police allowed to selectively prosecute female common nightwalkers?

The Massachusetts Equal Rights Amendment(Article 106 of the Articles of Amendment to the Massachusetts Constitution) requires that a common nightwalking charge against a female defendant be dismissed with prejudice upon an appropriate showing that the particular police department or prosecutor’s office consistently prosecutes female nightwalkers but not their male customers.

When a lawsuit is dismissed with prejudice, the court is saying that it has made a final determination on the merits of the case, and that the plaintiff is therefore forbidden from filing another lawsuit based on the same grounds.

IF YOU OR A LOVED ONE HAVE BEEN CHARGED WITH BEING A COMMON NIGHTWALKER, AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.

 CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.

 

 

 

 

 

Source: Instruction 7.120

 

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