- Elements of Prostitution and Solicitation:
- Penalties for Conviction for Prostitution and Solicitation:
- Other Non-Statutory Penalties:
- Possible Defenses to a Charge of Prostitution and Solicitation:
- Strategies for Defending Prostitution and Solicitation Cases
- *A Note on Entrapment:
Prostitution and solicitation are considered acts of disorderly conduct under California law. Disorderly conduct is a broad term that encompasses behavior that disturbs the peace, is an affront to the morality of the community, or increases the chance of other unlawful behavior happening. Other examples of disorderly conduct are fighting, public drunkenness, and loitering. Disorderly conduct offenses are misdemeanors.
Prostitution is offering to and engaging in sexual acts in exchange for money or something of value , and solicitation is the act of offering money or something of value in exchange for sexual acts. However, they’re not perfectly reciprocal acts: just because one person engages in prostitution doesn’t automatically mean that the person they’re having sex with is automatically engaging in solicitation, or visa versa.
Prostitution is the act of engaging in “lewd” acts with another person with the specific intent to exchange for money or other consideration, while soliciting is the offering of consideration in exchange for “lewd” acts. One offense is not considered less of an offense than the other, and both are considered crimes of moral turpitude. The elements of prostitution and solicitation are:
- Offering or soliciting “lewd acts” (sexual conduct), The “lewd” acts need not be penetrative sex so long as one of the people involved comes into physical contact with the genitals or secondary sex organs of the other for the purpose of sexual gratification.
- In exchange for consideration, Consideration is a benefit bargained for between the parties. It’s the desired thing a party wants and gets in exchange for giving the other party what they want. Consideration can be money, but it doesn’t have to be. It can be whatever someone wants, be it drugs, food, shelter, or even services rendered.
with specific intent to engage in sexual conduct, with manifest acceptance of an offer, To agree to engage in sexual conduct doesn’t complete the offense, nor is it enough to simply receive something of value from the other person. The law states that the one accused of prostitution must “manifest an acceptance” of an offer, meaning there must be an actual acknowledgment by the accused that he or she will receive consideration in exchange for sexual conduct.
Manifesting acceptance shows intent. With this element, it’s entirely possible that there is no meeting of the minds, that one party manifests acceptance even if the other does not, even though they engage in sexual conduct.
For example: A very naïve young man on vacation meets a very friendly woman at the hotel bar. They talk about Pokemon. She suggests they go back to his suite to “play games with his pocket monster,” and that she’ll show him her special techniques for “1 large.” The young man literally thinks they’re going to play Pokemon, so he invites her back to his room, orders them a large pizza from room service and asks her what Pokemon gyms she’s defeated. She seduces him then demands $1000. She has committed an act of prostitution, but he did not solicit it. He didn’t manifest acceptance to pay for sex.
AND after manifest acceptance, there is an act in furtherance of the agreement. California Penal Code §647 specifically states “no agreement to engage in an act of prostitution shall constitute a violation of this subdivision unless some act, in addition to the agreement, is done within this state in furtherance of the commission of an act of prostitution by the person agreeing to engage in that act.” Two adults could agree to exchange lewd acts for consideration and plan it, but there is no violation without any action in serious attempt at making this exchange happen.
By act, the law means doing anything to further the agreement, even speaking, so long as what is said clearly indicates that prostitution is going to happen, like telling a client to undress. The act may corroborate or clarify the otherwise spoken or signaled intent to engage in prostitution, such as a man flattering and doing favors for a young woman, then giving her a lot of money, instructing her to get a hotel room, and wait for him there.
Prostitution and solicitation are misdemeanors punishable by up to 6 months in jail and a fine of not more than $1000. However, if the individual has “priors” for the same offense, the penalties increase, and if the prostitution or solicitation took place in or near a car within 1000 feet of a residence, the court may suspend the driver’s license for up to 30 days.
|Cal. Pen. Code Statutes:||Custody:||Additional Penalties:|
|§§647(k),19||Up to six months||
|Cal. Pen. Code Statutes:||Custody:||Additional Penalties:|
|§§647(l), 19||Up to one year||
A conviction for prostitution or solicitation can be very embarrassing for the individuals and their families. Carrying the stigma of a prostitution or solicitation conviction can also have long-last implications after the statutory penalties are long over, such as:
- Inability or difficulty finding work with children or vulnerable persons
- Having a criminal record that can be found by employers, landlords, and schools
- Inability or difficulty obtaining employment in professional like law enforcement or childcare, and
- Difficulty entering professions like law and teaching, and
- For immigrants and resident aliens, great difficulty remaining in the United States.
The best defense to a charge of prostitution or solicitation is to disprove one of the elements. In order to get a conviction, the government has to prove beyond a reasonable doubt that every element of the crime is met. The best defense is to attack the weakest evidence.
There was no sexual conduct. There are many services exchanged for consideration where one person touches the other, and ones in which one person may even touch the other person’s genitals, but without the intent to cause sexual gratification. For example, someone may pay for a bikini wax, genital piercing, or full body massage where it’s likely the person paid for the service touches the client’s genitals. However, the intent isn’t sexual gratification.
It’s also possible to procure services for sexual gratification that aren’t sexual conduct, such as the services of a dominatrix, and services for sexual gratification that don’t meet the statutory definition of lewd acts, such as hiring an exotic dancer for a bachelor party (and only to dance).
There was no offer to exchange, nor was there an actual exchange of money or consideration. Two consenting adults engaging in sexual conduct is not illegal. This is true even if one or both of them otherwise have a history of prostitution or solicitation. In this case, there may be a lack of proof that one of the adults received something that would indicate an exchange, such as wad of cash hastily stashed. The conduct may occur in a situation or place where prostitution is unlikely, such as on a permaculture commune off the grid in the middle of the countryside.
There was no prior agreement or intent to exchange sex for consideration before the sexual conduct occurred. Like the defense above, two consenting adults engaging in sexual conduct is not illegal, and if before afterward, one of the adults offers a gift to the other, it doesn’t become solicitation or prostitution.
For Example: Two people, Kris and Pat, meet at a party on Saturday night and become quite taken with each other. They leave and go to Pat’s apartment, where they have sex. Afterward, Kris gives Pat a pendant of sentimental value and stays the night. On Sunday afternoon, Pat takes Kris out for brunch and they spend the day together, buying each other meals and small gifts. Pat insists that Kris take some cab fare to head home safely that night. Is this prostitution…or romance?
There was no intent to offer or procure sexual services. There is no crime of prostitution or solicitation by association. Even if one finds themselves in a place where prostitution and solicitation actually occurs, it’s not definitive proof that he or she engaged or intended to engage in prostitution or solicitation. This is especially true if there’s a lack of circumstantial evidence, like boxes of condoms where normally they wouldn’t be needed, such as a the suites in a massage parlor, or that the individual in question is modestly dressed and/or has no money on their person.
For example: A local strip club off the highway is known for prostitution in the back rooms. Two businessmen from out of town come in. They don’t know about the club’s reputation. They have drinks and watch the dancers, expecting nothing more and unable to pay for more. Likewise, a dancer from out of state who is new to the club and doesn’t know about its local reputation.
There was no agreement to engage in sexual conduct. Even if the victim has previously been convicted for prostitution, and the perpetrator has previously been convicted for solicitation in the past, all sex that is not consensual is rape , not prostitution or solicitation. This is true even if, after the assault, the perpetrator tries to offer the victim money or leaves money with him or her.
Likewise, sex trafficking isn’t prostitution because the person exchanging sex for consideration does so against their will. While the person procuring sex is still soliciting it, the person offering sex lacks the requisite intent because he or she is being forced by another party to prostitute him- or herself.
There was no act in furtherance of the agreement. If two people talk about prostitution at length, even talking as if they’re arranging it, but don’t do or say anything in furtherance of the act, there is no prostitution or solicitation.
For example: Dick puts up a Craigslist ad looking for a woman who wants to have dinner with him and give him the “girlfriend experience” in exchange for 300 “roses.” Jane responds. They email about the possibility at length, but after the sixth email back and forth, neither have agreed or even mentioned actually meeting. Joe grows impatient and stops responding.
The best way to defend against a charge of prostitution or solicitation is to disprove one of the elements of the charge. The best strategy is to attack the government’s weakest or most problematic evidence, removing it from the case if possible.
Plea Bargaining. You have a right to a jury trial, but you’re not required to have one. If you offer to plead guilty to an offense and save the government the time and expense of a trial, you can negotiate for a lighter sentence, and perhaps even no sentence.
- Pleading to a lesser/less stigmatizing charge. Although still a violation of Cal. Pen. Code §647 and therefore having the same penalties, the misdemeanor of “loitering” is a less stigmatizing offense because it’s not a crime of moral turpitude.
- If you’re also facing drug charges, consider a Deferred Entry of Judgment (DEJ): If a defendant pleads guilty or nolo contendre to first-time drug charges as part of a bargain to drop the prostitution charges, the court may postpone entering
a conviction for three years. If the defendant completes certain requirements for 18 months, then the court may dismiss the charges all together.
Challenge Government Misconduct. The government, both law enforcement and the prosecution, have a duty to uphold and honor an individual’s rights in all interactions with them. The government may not use in their case any evidence wrongfully gathered. Evidence gathered in violation of your civil rights may be wrongfully gathered. If challenged, the judge may bar some or all of the wrongfully gathered evidence. The prosecution has the burden to prove each element of a crime beyond a reasonable doubt. If they don’t have evidence or adequate evidence of an element, then they will not be able to meet their burden.
Challenge Truthfulness of Witnesses, Including the Other Person Involved. If you’re arrested with a prostitute or a client, expect the other person to have their own best interests in mind. The person you were with may not agree that they were committing a crime, but may say that you were or may testify against you as part of a deal. If they’re the best witness the government has, attacking their credibility and reliability as a witness can help create reasonable doubt of your guilt.
Entrapment is a legitimate, affirmative defense to prostitution and solicitation charges, meaning that even thought the defendant committed the elements of the crime, they were coerced by law enforcement.
There’s an urban legend that if prostitute asks a potential client if he or she is a police officer, the client is legally obligated to reveal if they are in fact law enforcement, and if they don’t, it’s entrapment. This is not true. An undercover officer doesn’t have to abandon their mission upon request from a civilian. Entrapment is not enticing someone to do something they were otherwise poised or likely to do. Entrapment is the act of coercing or tricking someone to do something illegal that he or she wouldn’t otherwise do by creating a criminal situation and putting the accused in it, hence creating a “trap.”
If you’re facing a charge for prostitution or solicitation, the facts and circumstances matter greatly. An experienced criminal attorney who has been on both sides and understands the defense’s and the prosecution’s perspective for a comprehensive defense. Get advice on your case from such an experienced criminal attorney by calling Justin Lo at 562-999-3682.
Cal. Pen. Code. §647.
Cal. Pen. Code. §647(b)(1); People v. Grow [(Cal. App. 1st Dist. Aug. 7, 1978), 84 Cal. App. 3d 310, 148 Cal. Rptr. 648, 1978 Cal. App. LEXIS 1867.] [“Prostitution is defined as any lewd act between persons for money or other consideration.”]
Cal. Pen. Code §647(b)(2).
Cal. Pen. Code §647(b)(1); CALJIC 16.420.
(Rohit v. Holder (9th Cir. 2012) 670 F.3d 1085, 1089-1090.): [“We hold that soliciting an act of prostitution is not significantly less "base, vile, and depraved" than engaging in an act of prostitution. Solicitation is the direct precursor to the act. A person who solicits an act of prostitution does not become appreciably more morally turpitudinous when the other party accepts or the two engage in the act. The base act is the intended result of the base request or offer.”] Though this decision comes from federal and not California state court, and this from an appeal from deportment, it explains the sentiment.
1-1000 CALCRIM 1154 (2017); (People v. Love (1980) 111 Cal.App.3d Supp. 1, 16 [168 Cal.Rptr. 591].): [“sexual intercourse between persons for money or other consideration" and "lewd" acts, for money or other consideration, confined to conduct where the genitals, buttocks or female breasts of either the prostitute or the customer come in contact with some part of the body of the other for the purpose of sexual arousal or gratification of the customer or of the prostitute.”]
Cal. Pen. Code §647(b)(1).
Cal. Pen. Code §647(b)(1).
Cal. Pen Code. §647(b)(4).
(Kim v. Superior Court (2006) 136 Cal.App.4th 937, 938 [39 Cal.Rptr.3d 338].)[“words alone can constitute an act in furtherance of an agreement to engage in an act of prostitution, providing that the statements made are unequivocal and unambiguous in moving the parties toward the agreed act.”]
See (People v. Mecano (2013) 214 Cal.App.4th 1061, 1070 [154 Cal.Rptr.3d 519].).
Cal. Pen. Code §19.
Cal. Pen. Code §647(l).
Cal. Pen Code. §647(k).
though it may be circumstantial evidence.
Cal. Pen. Code §261.
Cal. Pen. Code §236.1(c).
A DEJ will not remove the conviction for the purposes of immigration; a guilty plea is as good as a conviction. See 8 USC § 1101(a)(48)(A): [“The term “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt”]
See SNOPES.COM. “Are You a Cop?” http://www.snopes.com/risque/hookers/cop.asp. Last accessed Jul 24 2017.
[People v. West (1956) 139 Cal.App.2d Supp. 923, 924 [293 P.2d 166].][“ Entrapment is the conception and planning of an offense by an officer and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer. Persuasion or allurement must be used to entrap. [Citation.] The officer must induce the defendant to commit a crime which he would not have committed without such inducement. It is not the entrapping of a criminal that the law frowns upon but the seduction of innocent persons into a criminal career by its officers.”]