Court rules popping the cork not the same as making the beast with two backs

The Supreme Judicial Court today threw out a Harvard Square merchant's conviction for running a brothel because the judge in his case incorrectly told the jury to consider whether the women he employed offered traditional sex when they actually only offered hand jobs and anal sex.

In a ruling that defines terms such as "popping the cork" (anal sex) and "Russian ending" (genital/breast contact) the state's highest court, however, upheld Duncan Purdy's conviction for pimping, based in part on e-mails found in a computer in the antiques part of his shop and the testimony of undercover Cambridge and Somerville detectives who paid for and received massages there.

Purdy ran a combination hair salon/art gallery/massage parlor on Arrow Street until his arrest in 2005. In addition to the prostitution conviction, he was convicted in 2007 for raping a woman during a massage session.

The court ruled the judge's final instructions to the jury in the brothel charge were so broad as to put Purdy in unfair jeopardy, because she inferred Purdy might have done something there was no evidence he had, when she said:

"The law defines sexual intercourse as the insertion to any degree of the male penis into the genital opening of the female.... Unnatural sexual intercourse includes oral and anal intercourse, including fellatio and cunnilingus, and any other intrusion of any other object into the genital or anal opening of another person's body."

The problem is that prosecutors presented no evidence that Purdy's women either offered or actually provided penile-vaginal intercourse, the justices ruled:

The Commonwealth asks us to infer that, because the masseuses offered other specific sexual services, they were available for sexual intercourse as defined in [Massachusetts case law]. This inference is untenable. There was no evidence that the masseuses were present in the defendant's establishment for the purpose of penile-vaginal intercourse, or that the defendant knew about such activity. To the contrary, the evidence indicated that the defendant's business served as a place where other sexual services were offered, but not penile-vaginal intercourse. There was nothing on the printed "menu" of services to suggest that it included penile-vaginal intercourse; nor did the defendant or the masseuses say anything to the undercover detectives to suggest that it did. The massage menu itself states, "We do not offer full service or oral services under any circumstance. All of our offerings are disease-proof and designed for both our clients and our own personal protection." This assertion was supported by the search executed at the salon, which found "sex toys" but not condoms. It is also supported by the physical layout of the business, where the single massage room was separated from the rest of the salon only by a bifold door with "slats," and contained only a massage table, not a bed.

Nor did any of the e-mails offered in evidence suggest that penile-vaginal intercourse was permitted in the salon. Indeed, in one of the e-mails, discussed above, the defendant told an apparent customer that a particular masseuse "has beautiful breasts and she will allow light touching" but, he warned, "no other touching."

The justices ruled prosecutors had made their case that Purdy was deriving income from prostitution, and so upheld that part of his conviction.

• Complete ruling, Commonwealth vs. Duncan Purdy