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SJC-12529

COMMONWEALTH vs. JONATHAN E. BROWN.

Essex. October 2, 2018. - December 11, 2018.

Present (Sitting at Worcester): Gants, C.J., Lenk, Gaziano, 

Lowy, Budd, Cypher, & Kafker, JJ.

Deriving Support from Prostitution. Statute, Construction.

Constitutional Law, Vagueness of statute. Practice, 

Criminal, Instructions to jury, Request for jury 

instructions, Argument by prosecutor. Words, "Pimping."

Complaint received and sworn to in the Lynn Division of the 

District Court Department on June 22, 2012.

Following review by the Appeals Court, 90 Mass. App. Ct. 

1107 (2016), the case was tried before Michael A. Patten, J.

The Supreme Judicial Court granted an application for 

direct appellate review.

David M. Osborne for the defendant.

Emily R. Mello, Assistant District Attorney, for the 

Commonwealth.

Maura Healey, Attorney General, & Maria Granik, Assistant 

Attorney General, for the Attorney General, amicus curiae, 

submitted a brief.
2

KAFKER, J. For over a century the Commonwealth has 

outlawed living off of or otherwise sharing in money earned by a 

known prostitute.1 Historically, "pimps or purveyors" have been 

understood to be the objects of this prohibition, although no 

definition of either "pimp" or "purveyor" has ever appeared in 

the statutory text, currently codified at G. L. c. 272, § 7.2

Claiming that, without further clarification, the language of 

this statute is unconstitutionally vague and that he suffered 

prejudice from jury instructions tracking such language, the 

defendant, Jonathan E. Brown, seeks reversal of his conviction

on a single count of deriving support from prostitution under 

G. L. c. 272, § 7. We disagree and affirm.

We conclude that G. L. c. 272, § 7, is constitutional, as 

we construe it to target those who, with the intent to profit 

from prostitution, live or derive support or maintenance from, 

or share in the earnings or proceeds of, the known prostitution 

 

1 Throughout this opinion we use the term "prostitute" to 

refer to a person who engages or offers to engage in sexual 

conduct with another person for a fee because that term appears 

in the statutory text.

2 The statute provides that "[w]hoever, knowing a person to 

be a prostitute, shall live or derive support or maintenance, in 

whole or in part, from the earnings or proceeds of his [(i.e.,

that person's)] prostitution . . . or shall share in such 

earnings [or] proceeds . . . shall be punished by imprisonment 

in the state prison for a period of five years . . . . The 

sentence of imprisonment . . . shall not be reduced to less than 

two years . . . ." G. L. c. 272, § 7.
3

of others. We reach this conclusion from reading the statutory 

language in the context of common understanding and ordinary 

usage, as well as the statute's legislative history and severe 

penalty provisions, all of which demonstrate with sufficient 

clarity that G. L. c. 272, § 7, is directed at so-called

"pimping." Because a pimp knowingly and intentionally profits 

from the prostitution of another, he or she differs from the

child of a sex worker, a local merchant who sells food to a 

known sex worker, or a medical professional who provides a sex 

worker with counselling services; the literal language of the 

statute may reach all of these individuals, but, unlike a pimp,

they lack the intention to profit from the prostitution of 

another.

Here, the evidence was sufficient for the jury to conclude 

that the defendant -- who accompanied a woman to a prearranged 

prostitution transaction and was caught, immediately after 

leaving the scene with that woman, with the entire proceeds of 

the transaction hidden in his shoe -- knowingly and 

intentionally profited from the prostitution of another, and 

therefore engaged in pimping within the meaning of G. L. c. 272, 

§ 7. While we prospectively clarify the jury instructions to 

avoid any possible confusion that this statute might apply to 

those who lack such an intent, we discern no prejudicial or 

other reversible error in the instant case.
4

1. Facts. The facts, in the light most favorable to the 

Commonwealth, are as follows. See Commonwealth v. Latimore, 378 

Mass. 671, 677 (1979).

On June 21, 2012, as part of a national antiprostitution 

"sting" operation, law enforcement officers arranged to meet two

women at a hotel in Saugus after responding to Internet 

advertisements for female prostitution. Police were instructed 

to watch for two women arriving at the Saugus hotel, and that 

evening, a police surveillance team observed two women, the 

defendant, and another man arrive at the hotel in a black motor 

vehicle. The two men waited in the vehicle in the rear parking 

lot of the hotel while the women went inside to a hotel room. 

There, another surveillance team observed as an undercover 

officer, posing as a customer, agreed with one of the women to 

have sex for $250. The officer handed the woman $250 in cash,

after which he answered a prearranged telephone call and told 

the two women they had to leave. The women returned to the 

vehicle and were driven away with the defendant.3 The police

stopped the vehicle and, after frisking the defendant, found the 

 

3 On direct examination, a police officer identified the 

defendant as the driver of the vehicle, but on crossexamination, after having his memory refreshed from testimony at 

an earlier proceeding, he explained that the defendant was in 

either the driver's seat or the front passenger's seat.
5

same $250 that the officer had given the woman as payment for 

sex hidden in the defendant's shoe.

The defendant was subsequently charged and convicted at a 

bench trial of deriving support from prostitution under G. L. 

c. 272, § 7,4 but his conviction was reversed by the Appeals 

Court in an unpublished memorandum and order pursuant to its 

rule 1:28 due to the prosecution's errors in its closing 

argument. See Commonwealth v. Brown, 90 Mass. App. Ct. 1107 

(2016). Before his second trial, the defendant moved to dismiss 

the charge, claiming that the statute was unconstitutional for 

vagueness. That motion was denied. At the second trial, which 

was tried before a jury, the defendant moved for a required 

finding of not guilty, relying on the Appeals Court decision in 

Commonwealth v. Thetonia, 27 Mass. App. Ct. 783 (1989), which 

examined the meaning of the terms "pimp or purveyor" as set out 

in the statute's legislative history. That motion was also 

denied. Finally, relying again on Thetonia, the defendant 

sought supplementary instructions that would change Instruction 

7.140 of the Criminal Model Jury Instructions for Use in the 

District Court (2009) (model jury instruction 7.140). The 

defendant's requested instruction, based on model jury

 

4 The defendant was also charged with trafficking of a 

person for sexual servitude in violation of G. L. c. 265, 

§ 50 (a), but this charge was dismissed before the first trial, 

and a nolle prosequi was entered before the second trial.
6

instruction 7.140, with his requested supplementary language 

emphasized, is as follows:

"Deriving Support from Prostitution

"The defendant is charged with knowingly deriving 

support from the earnings of a prostitute. This is 

commonly known as the 'pimping' statute. Chapter 7 of 

Section 272 of our General Laws provides as follows: 

'Whoever, knowing a person to be a prostitute, shall 

live or derive support or maintenance, in whole or in 

part, from the earnings or proceeds of his 

prostitution . . . or shall share in such earnings or 

proceeds . . . shall be punished.'

"In order to prove the defendant guilty of this 

offense, the Commonwealth must prove three [(and with 

the requested changes, four)] things beyond a 

reasonable doubt:

"First, that a particular person was engaged in 

prostitution. A prostitute is a person who engages in 

common, indiscriminate sexual activity for hire.

"Second, The Commonwealth must prove beyond a 

reasonable doubt that the defendant knew [(emphasis in 

original)] that such person was a prostitute; and

"Third, The Commonwealth must prove beyond a

reasonable doubt that the defendant shared in some 

substantial way in the earnings or proceeds from that 

person's prostitution.

"Fourth, The Commonwealth must prove beyond a 

reasonable doubt that the Defendant played a 

substantial role in facilitating this person's 

prostitution. For example, it is not enough if the 

Defendant simply drove the prostitute to a job."

The judge denied the requested supplementary instructions and 

gave model jury instruction 7.140. The jury found the defendant 

guilty under G. L. c. 272, § 7, and this appeal followed.
7

2. Discussion. a. Purpose of G. L. c. 272, § 7. To 

determine the meaning of G. L. c. 272, § 7, we begin, as we 

must, with the statutory language, interpreted in light of 

"ordinary and approved usage" and "sound reason and common 

sense" (citations omitted). Commonwealth v. Brown, 479 Mass. 

163, 166-167 (2018). The text of G. L. c. 272, § 7, imposes 

criminal liability when a person (1) knows another person is a 

prostitute; and (2) lives off or otherwise shares in money that 

the prostitute earned from prostitution activities or received 

from a brothel or its employees. In other words, the statute 

plainly targets third parties who knowingly derive their

livelihood or otherwise profit from prostitution. In common 

vernacular and understanding, the statute appears to target

"pimps."

The legislative history confirms such an understanding of 

this century old provision. See Commonwealth v. Bundy, 465 

Mass. 538, 545 (2013), quoting Perry v. Commonwealth, 438 Mass. 

282, 285 (2002) ("We cannot interpret statutory language in a 

vacuum, ignoring the Legislature's purpose in enacting the 

statute and oblivious to 'the time in which [the language] is 

used'"). It expressly informs us that the statutory purpose of 

G. L. c. 272, § 7, is to target "pimps" who profit from "the 

business of commercialized prostitution." Report of the 

Commission for the Investigation of the White Slave Traffic, So 
8

Called, 1914 House Doc. No. 2281, at 22 (1914 report). A draft 

version of the original 1910 legislation, consistent with nearly 

identical contemporary legislation in other States, explicitly 

defines the prohibited conduct as "pimping."5 Also, a 1914 

report commissioned by the Legislature recommended amending the 

1910 statute to better prosecute "pimps and procurers," which it 

defined as "exploiters of women" who profit from "the business 

of commercialized prostitution." 1914 report, supra at 20, 22, 

82-83. See St. 1914, c. 621 (enacting proposed amendment).6 

 

5 "Any male person who, knowing a female person to be a 

prostitute, shall live or derive support or maintenance, in 

whole or in part, from the earnings or proceeds of the 

prostitution of such prostitute, or from moneys loaned or 

advanced to or charged against such prostitution by any keeper 

or manager or inmate of a house or other place where 

prostitution is practised or allowed, or who shall tout or 

receive compensation for touting for such prostitute, shall be 

guilty of pimping . . ." (emphasis added). An Act relative to 

the procuring and detaining of women for immoral purposes, 1910 

House Bill No. 767, § 3. While the draft legislation does not 

use the word "purveyor," § 1 of the draft legislation, a version 

of which is codified at G. L. c. 272, § 12, targets "pandering," 

defined as "procuring" women for prostitution purposes. See id. 

See also R.G. Latham, A Dictionary of the English Language 668 

(1870) (defining "purveyor" as a "[p]rocurer; pimp").

Several other States have very similarly worded statutes 

dating from the same time period that define the proscribed 

conduct as "pimping." See 1910 Cal. Stat. 10 (39th sess., 

c. 15); 1915 Del. Laws 2095; 1916 W. Va. Acts 1221. For the 

intense contemporary concern with forced prostitution that 

inspired State antipimping legislation around this time, see B. 

Donovan, Respectability on Trial: Sex Crimes in New York City, 

1900-1918 at 108 (2016).

6 Until 1977, G. L. c. 272, § 7, only applied to female 

prostitution.
9

Furthermore, G. L. c. 272, § 4B, which criminalizes living off 

of or sharing in the earnings of a prostitute who is a minor in 

language that parallels the language of G. L. c. 272, § 7, was 

introduced as a bill targeting "pimps."7 Finally, the title of 

the 1980 session law amending G. L. c. 272, §§ 6 and 7, is "An 

Act increasing the penalty for a so-called pimp or purveyor." 

St. 1980, c. 409.

Our case law has also recognized that the statutory 

language of G. L. c. 272, § 7, must be read in light of its 

purpose of proscribing pimping. We made this point in passing 

when we upheld the penalty provision of the statute in

Commonwealth v. Lightfoot, 391 Mass. 718, 720–721 (1984) 

(inferring legislative intent to increase penalties for deriving 

support or maintenance from prostitute "from the title of the 

act, 'An Act increasing the penalty for a so-called pimp or 

purveyor,' St. 1980, c. 409"). The Appeals Court, in Thetonia,

further analyzed and clarified the statutory purpose of 

proscribing pimping when it reversed the conviction of a 

defendant who, while occasionally receiving small amounts of 

 

7 General Laws c. 272, § 4B, was introduced by the same 

legislator who sponsored a 1980 amendment to G. L. c. 272, § 7, 

as "An Act establishing a mandatory prison term for a pimp socalled, or purveyor or other who induces male and female minors 

to become prostitutes and who derives support from them." 1979 

House Bill No. 6753.
10

money from her friend in exchange for driving her friend to 

prostitution activities, "did not . . . engage in pimping" 

within the meaning of the statute. Thetonia, 27 Mass. App. Ct. 

at 786-787.

The severity of the penalty imposed for a felony conviction

under G. L. c. 272, § 7 -- a five-year maximum sentence with a 

two-year mandatory minimum sentence -- provides further support 

that the statute is directed at the serious crime of pimping.

By contrast, patronizing an adult prostitute and engaging in 

prostitution are both misdemeanors punishable by less severe 

sentences.8

The defendant is correct that G. L. c. 272, § 7, absent 

such construction, could literally be read to cover innocent 

conduct (e.g., the children of a sex worker who know what their 

parent does for a living, the local storekeeper who sells food 

or clothing to a known sex worker, or a medical professional 

providing counselling or other health care services to a sex 

worker). We do not think, however, that the common 

understanding of the statutory text, combined with the clear and 

 

8 Patronizing a prostitute is punishable by a $5,000 maximum 

fine or a maximum sentence of two and one-half years, G. L. 

c. 272, § 53A (b), while engaging in prostitution is punishable 

by a $500 maximum fine or a one-year maximum sentence, G. L. 

c. 272, § 53A (a). Under G. L. c. 272, § 62, however, a "common 

nightwalker" (i.e., a prostitute who works at night on the 

street) may receive a maximum sentence of two and one-half years 

if convicted three times of that offense.
11

express legislative antipimping purpose, would support its 

application in instances -- such as prosecuting a child for 

taking a sandwich from his or her mother -- that do not in any 

way involve pimping and which the defendant himself 

characterizes as "absurd." See Commonwealth v. Cassidy, 479 

Mass. 527, 534, cert. denied, 139 S. Ct. 276 (2018) ("[w]e will 

not adopt a literal construction of a statute if the 

consequences of such construction are absurd or unreasonable" 

[citation omitted]). In any event, we do not interpret the 

prohibition on living off of or sharing in money received from a 

known prostitute to include the foregoing individuals, who may 

have knowledge of the prostitution and receive some support or 

money from the prostitute, but who, unlike a pimp, do not intend 

for the prostitution to occur.9

In short, pimping -- which we define as knowingly and 

intentionally profiting from the prostitution of another -- is 

 

9 This interpretation is consistent with the holdings of 

appellate courts of other States. See, e.g., People v. Morey, 

230 Mich. App. 152, 164 (1998), aff'd, 461 Mich. 325 (1999) 

(statute that prohibits profiting from prostitution containing 

knowledge requirement constitutional because it "could not 

reasonably be applied to entirely innocent conduct"); State v.

Yancy, 92 Wash. 2d 153, 157 (1979) (statute criminalizing 

"profiting from prostitution" constitutional because it does not 

reach "persons engaged in legitimate pursuits" who, while they 

may receive money from prostitute, lack "an agreement or 

understanding . . . to participate in the proceeds of 

prostitution activity").
12

what the Legislature proscribed when enacting the statute that 

is now G. L. c. 272, § 7.

b. Constitutionality of G. L. c. 272, § 7. The defendant 

contends that G. L. c. 272, § 7, is unconstitutionally vague.

We upheld the constitutionality of an earlier version of the 

statute shortly after its passage. Commonwealth v. Peretz, 212 

Mass. 253, 256 (1912). See Lightfoot, 391 Mass. at 719 (holding 

penalty provision of statute constitutional); Commonwealth v. 

Roberts, 372 Mass. 868, 868 (1977) (observing that statute has 

been held plainly constitutional). We now reaffirm the 

constitutionality of G. L. c. 272, § 7.

In order to prevail on a vagueness challenge, a defendant 

must show that a statute effects a due process deprivation by 

failing to provide (1) a reasonable opportunity for a person of 

ordinary intelligence to ascertain what the statute prohibits; 

and (2) comprehensible standards that limit prosecutorial and

judicial discretion and thus avoid discriminatory or arbitrary 

enforcement. Commonwealth v. Hendricks, 452 Mass. 97, 102

(2008). A statute will not be found unconstitutionally vague, 

however, "if it requires a person to conform his conduct to an 

imprecise but comprehensible normative standard" or "conveys [a]

sufficiently definite warning as to the proscribed conduct when 

measured by common understanding and practices" (citations

omitted). Commonwealth v. McGhee, 472 Mass. 405, 414 (2015). A 
13

criminal statute will not "be construed so strictly as to defeat 

the obvious intention of the [L]egislature" (citation omitted), 

Commonwealth v. Great Atl. & Pac. Tea Co., 404 Mass. 476, 480

(1989), particularly "if its scope is substantially clear" 

despite "[u]ncertainty as to whether marginal offenses are 

included within the coverage of a statute" (citation omitted), 

McGhee, supra. As we have often recognized, "[i]f a statute can 

be made constitutionally definite by a reasonable construction, 

the court is under a duty to give it that construction" 

(citation omitted). Great Atl. & Pac. Tea Co., supra at 482.10

Here, we think it is sufficiently clear and definite in 

light of both common and historical understanding that G. L. 

c. 272, § 7, criminalizes pimping, that is, living off of or 

sharing in the earnings of a known prostitute with an intent to

profit from that person's prostitution. The defendant, citing 

what he calls "absurd" examples of third parties who might fall 

within the literal language of the statute (e.g., a child who 

 

10 Indeed, through judicial construction, we have upheld 

several prostitution-related sections of G. L. c. 272 as 

constitutional. See Aristocratic Restaurant of Mass., Inc. v.

Alcoholic Beverages Control Comm'n (No. 2), 374 Mass. 564, 568 

(1978) ("immoral solicitation or immoral bargaining" provision 

of G. L. c. 272, § 26, not unconstitutionally vague); 

Commonwealth v. King, 374 Mass. 5, 10 (1977) ("prostitute" 

provision in G. L. c. 272, § 53, not unconstitutionally vague); 

Thomes v. Commonwealth, 355 Mass. 203, 207 (1969) ("common night 

walker" provision of G. L. c. 272, § 53, not unconstitutionally 

vague).
14

receives a meal paid for by his or her mother's sex work), 

contends that the statute is unconstitutionally vague "since on 

its face it criminalizes any financial relationship with a 

person known to be a prostitute." We decline, however, to 

consider a challenge that a criminal statute is "facially vague" 

when the defendant's "vagueness challenge to the statute does 

not involve a claim that an overbroad statute threatens 

interests protected by the First Amendment to the United States 

Constitution." Hendricks, 452 Mass. at 98 n.1. See 

Commonwealth v. Walter, 388 Mass. 460, 465–466 (1983) (court 

will consider whether statute is vague as applied to particular 

defendant, not "hypothetical application" of statute to 

others).11 Here, the defendant did not raise a First Amendment 

argument. We thus reject his facial challenge to the statute.

Turning to the constitutionality of G. L. c. 272, § 7, as 

applied to the facts of the defendant's case, we likewise find

no merit to that challenge. Our analysis of the common

understanding of the statutory language, the legislative 

history, and the severity of the statutory penalty establishes

that, through the statute's prohibition on living off of or 

sharing in the proceeds of prostitution, the Legislature sought

to proscribe the conduct of a pimp: one who knowingly and 

 

11 Regardless, we have discussed the hypothetical scenarios 

the defendant raises in our analysis of the statute, supra.
15

intentionally profits from the prostitution of another. See, 

e.g., 1914 report, supra at 22 (describing pimp as someone 

profiting from "the business of commercialized prostitution"). 

As so construed, we do not consider G. L. c. 272, § 7, to be 

"vague as applied" to the actual circumstances of the 

defendant's case. Walter, 388 Mass. at 466. Unlike the 

hypothetical prosecutions the defendant imagines, the conduct of 

the defendant fits within the core concern of the statute. In 

short, the defendant can only challenge the constitutionality of 

the statute as applied to him, and consistent with our judicial 

construction of the statute to target those who intend to profit 

from the prostitution of another, we hold that G. L. c. 272, 

§ 7, is not unconstitutional as applied to this defendant.

c. Absence of jury instructions. In addition to 

challenging the constitutionality of G. L. c. 272 § 7, the 

defendant argues that he was prejudiced by the trial judge's 

failure to issue his requested jury instructions. These 

requested instructions would have supplemented model jury 

instruction 7.140, which essentially repeats the statutory 

prohibition that makes it a crime for a person, knowing another 

person to be a prostitute, to share in the earnings or proceeds 

of that person's prostitution.12 Because the defendant properly 

 

12 The instruction also defines a prostitute as a "person 

who engages in common, indiscriminate sexual activity for hire." 
16

preserved his objection to the judge's denial of his requested 

instructions, we review for prejudicial error. See Commonwealth

v. Cruz, 445 Mass. 589, 591 (2005). Specifically, a judge's 

failure to give a requested jury instruction "is reversible 

error only if the requested instruction was substantially 

correct; was not substantively covered in the jury charge; and 

concerns an important issue such that the failure to give the 

instruction seriously impaired the defendant's ability to 

present a given defense." Commonwealth v. Deane, 458 Mass. 43, 

59 n.15 (2010). Additionally, we consider whether the absence 

of an instruction clarifying that G. L. c. 272, § 7, expressly 

requires intent to profit from the prostitution of another 

caused a substantial risk of a miscarriage of justice. See 

Commonwealth v. Richardson, 479 Mass. 344, 353 (2018) (where

defendant does not request jury instruction at trial, reviewing 

court applies substantial risk of miscarriage of justice 

standard).

As explained above, the defendant requested three

supplementary instructions. First, he requested that a sentence 

be added indicating that G. L. c. 272, § 7, "is commonly known 

as the 'pimping' statute." Second, he requested that the word 

"substantial" be added to the requirement that he have received

 

Instruction 7.140 of the Criminal Model Jury Instructions for 

Use in the District Court (2009).
17

support and maintenance from the earnings of a prostitute. 

Finally, he requested that the following fourth element be 

added: "Fourth, The Commonwealth must prove beyond a reasonable 

doubt that the Defendant played a substantial role in 

facilitating this person's prostitution. For example, it is not 

enough if the Defendant simply drove the prostitute to a job."

On appeal the defendant, relying on Thetonia, further seeks to 

limit the definition of "pimping" to procuring customers for a 

client. See Thetonia, 27 Mass. App. Ct. at 786 & n.4 (defining 

"pimp" as one "who obtains customers . . . for a . . . 

prostitute" or "cohabits with a prostitute, lives off her

earnings and often solicits for her" [citations omitted]).

First, we consider the defendant's request to have the jury 

instructed that G. L. c. 272, § 7, is "commonly known as the 

'pimping' statute." We agree that this statement is correct as 

a matter of legislative history and common understanding. As 

explained, however, we do not see the necessity for further 

emphasizing this common understanding in these circumstances.

Moreover, without further definition of "pimping," such 

instruction would provide little additional guidance to the 

jury.

Second, the defendant's request for an instruction that the 

Commonwealth must prove that he "shared in some substantial way" 

in the earnings of prostitution is not an accurate statement of 
18

the law. The key factor is the defendant's intention to profit 

from the prostitution of a known prostitute, not the 

substantiality of the defendant's gains.

Third, we conclude that the fourth element that the 

defendant sought to add -- substantial facilitation of another's 

prostitution -- is not a necessary aspect of "pimping" 

proscribed by G. L. c. 272, § 7. It is true that standard 

definitions of "pimping" -- including one suggested by Thetonia

-- describe facilitation of, as well as profiting from,

prostitution.13 Yet G. L. c. 272, § 7, makes no mention of 

facilitation of prostitution (which would include, for example, 

soliciting for customers) because the Legislature chose to 

criminalize such conduct under separate sections of G. L. 

c. 272, not as a required element of G. L. c. 272, § 7. See 

St. 1910, c. 424 (enacting or amending present G. L. c. 272, 

§§ 2, 6, 8, 12, and 13). See also Commonwealth v. Alfonso, 449 

Mass. 738, 744 (2007) ("Statutes that relate to a common subject 

 

13 See Commonwealth v. Thetonia, 27 Mass. App. Ct. 783, 786

n.4 (1989) (defining "pimp" as "man who cohabits with a 

prostitute, lives off her earnings, and often solicits for her"

[citation omitted]). See also Oxford English Dictionary Online 

(defining "pimp" as "a man who takes a proportion of the 

earnings of a prostitute, usually in return for arranging 

clients, providing protection, etc."). This definition of a 

pimp as one who facilitates prostitution for profit is longstanding. See, e.g., R. Jameson, A Dictionary of the English 

Language: By Samuel Johnson and John Walker 286 (1828)

(defining "fleshmonger" as "[o]ne who deals in flesh; a pimp").
19

matter should be construed together so as to constitute an 

harmonious whole" [quotations and citation omitted]).

Finally, we consider whether the jury should have received 

an instruction, consistent with the statutory interpretation

that we provide in this decision, explaining that the

prosecution must show that the defendant intentionally profited

from the prostitution of another. Although we conclude that 

such an instruction should be given prospectively, it was not 

required in the instant case. The Criminal Model Jury 

Instructions for Use in the District Court required the jury to 

determine that another person engaged in prostitution, the 

defendant knew that the other person was engaged in the 

prostitution, and the defendant received the proceeds from that 

prostitution. As explained above, the common understanding of 

this language would be that it targets pimping, and the factual

scenario here did not present concerns about innocent activity 

that might otherwise meet the literal language of the statute. 

Rather, the defendant's conduct fell within the core concern of 

the statute. In sum, we conclude that such an instruction was 

not required in the instant case.

We do decide, however, that the jury instructions for this 

crime should be expanded prospectively beyond those included in 

the Criminal Model Jury Instructions for Use in the District 

Court to avoid prosecution and thus possible conviction for 
20

conduct that could not be classified as pimping but might 

otherwise meet the literal language of the statute. Model jury 

instruction 7.140 should be modified as follows by inserting the 

emphasized language and deleting the struck through language:

"Deriving Support from Earnings of a Prostitute

"The defendant is charged with knowingly 

(deriving support from) (sharing in) the earnings of a 

prostitute. This statute makes it a crime to engage 

in 'pimping,' that is, 'knowingly and intentionally 

profiting from the prostitution of another.'

"Chapter 7 of section 272 of our General Laws 

provides as follows:

"'Whoever, knowing a person to be a prostitute, 

shall live or derive support or maintenance, in whole 

or in part, from the earnings or proceeds of his 

prostitution . . . or shall share in such earnings 

[or] proceeds . . . shall be punished . . . .'

"In order to prove the defendant guilty of this 

offense, the Commonwealth must prove three things 

beyond a reasonable doubt:

"First: That a particular person was engaged in 

prostitution. A prostitute is a person who engages in 

common, indiscriminate sexual activity for hire.

"Second: The Commonwealth must prove beyond a 

reasonable doubt that the defendant knew that such 

person was a prostitute had knowledge of, and intended 

to profit from, this person's prostitution; and

"Third: The Commonwealth must prove beyond a 

reasonable doubt that the defendant shared in some way 

in the earnings or proceeds from that person's 

prostitution."

d. Other arguments. The defendant also argues that (1) 

G. L. c. 272, § 7, lacks a mens rea requirement; (2) the 
21

evidence was insufficient to convict him; and (3) the 

prosecution committed reversible error in its closing argument.

Given our holding that G. L. c. 272, § 7, requires an 

intent to profit from the prostitution of another, we reject the 

defendant's argument that this statute lacks a mens rea element.

We also reject the defendant's arguments that the evidence 

was insufficient to support his conviction when viewed in the 

light most favorable to the Commonwealth. See Commonwealth v. 

Bin, 480 Mass. 665, 674 (2018) (reciting sufficiency of evidence 

standard). The defendant's main insufficiency argument hinges 

on his contention that G. L. c. 272, § 7, incorporates the 

facilitation of prostitution as a necessary element, but for the 

reasons discussed supra, we reject that argument.14

Viewing the evidence in the light most favorable to the 

Commonwealth, a rational trier of fact reasonably could have 

inferred from witness testimony and circumstantial evidence that

the defendant knowingly and intentionally profited from the 

prostitution of another. The defendant was in the vehicle in 

which a woman was driven to a hotel in response to an online 

advertisement for sexual services, and he waited in the parking 

 

14 Regardless, the jury could reasonably have found that the 

defendant facilitated the act of prostitution when he 

accompanied the woman engaged in prostitution to the place of 

prostitution and helped her conceal the proceeds of that 

prostitution.
22

lot while the woman went into the hotel to the prearranged 

prostitution transaction. That woman accepted money for sex and 

then immediately gave the defendant the money, which he 

concealed in his shoe. From this conduct the jury could infer 

that the defendant knew that the woman was a prostitute, knew 

she had received money for engaging in an act of prostitution, 

and, by taking the money from her, revealed an intention to 

profit from prostitution. See Commonwealth v. Matos, 78 Mass. 

App. Ct. 578, 589-590 (2011) (evidence sufficient to convict 

defendant under G. L. c. 272, § 7, where he accompanied 

prostitute to commercial sexual encounter at hotel arranged over 

Internet, picked her up from hotel, and took all proceeds of 

transaction).

Finally, we do not agree that any errors in the 

prosecutor's closing argument require reversal. The defendant 

makes much of one prosecution witness's equivocation as to 

whether the defendant was driving the vehicle that transported 

the two women to and from the hotel or instead may have been in 

the front passenger's seat. See note 3, supra. Whether or not 

the defendant was driving, as the prosecution said in its 

closing argument, the evidence still revealed that he

accompanied the prostitute to and from the prearranged

prostitution transaction at the hotel and received the proceeds 

from the transaction. See Matos, 78 Mass. App. Ct. at 589-590
23

(upholding sufficiency of evidence supporting defendant's 

conviction where he accompanied prostitute to and from hotel). 

And the prosecutor's statement that the second woman was a 

prostitute, which was not objected to below, was harmless in 

light of the ample evidence that the first woman engaged in a 

prostitution transaction.

3. Conclusion. For the foregoing reasons, we affirm the 

defendant's conviction. Additionally, we approve the model jury 

instructions set out above for future prosecutions under G. L. 

c. 272, § 7.15

So ordered.

 

15 Similar jury instructions should be used for prosecutions 

under G. L. c. 272, § 4B, the parallel antipimping statute for a 

prostitute who is a minor.