Prostitution and Solicitation

Despite having been around forever and being legal in some parts of the country, prostitution is still aggressively prosecuted as a crime in California. Prostitution is defined as engaging in a sexual act in exchange for money or other consideration.

Prostitution law under California Penal Code section 647(b) covers three different acts: (1) engaging in the sexual act(s) for money or other consideration; (2) making an offer to engage in an act of prostitution, which is known as solicitation; and (3) agreeing to engage in an act of prostitution. These acts are prosecuted as misdemeanor offenses.

Prostitution
In order to convict a defendant charged with prostitution, the prosecution must prove the defendant:
Engaged in sexual intercourse or any lewd act with another person in exchange for money
Engaged in such act willfully
A “lewd” act is an act that involves the touching of genitals, buttocks, or female breasts of another person with the specific intent to arouse or gratify sexually.

Solicitation
In order to convict a defendant charged with soliciting prostitution, the prosecution must prove:
The defendant lured or tried to induce or elicit another person to engage in sexual intercourse or any lewd act with another person in exchange for money
The defendant did so with the specific intent to engage in sexual intercourse or any lewd act in exchange for money
Either the customer (the “John”) or the prostitute may face charges of solicitation, depending on the nature of the exchange.
The specific intent element of solicitation is usually proven by an offer to pay money or other compensation (or receive either) in exchange for sexual favors. Gestures are generally not enough to prove this element.
Additionally, one court has gone so far to require that the solicitation actually be received for the defendant to be guilty. Thus, if the person solicited does not hear the offer, the defendant may not be guilty of solicitation. Prosecutors in this situation, however, can charge attempted solicitation, which has reduced penalties.

Agreeing to Engage in an Act of Prostitution: A positive response with negative consequences
This charge is a mirror to solicitation. A person who receives the solicitation and agrees to engage in the prostitution may be convicted of agreeing to engage in an act of prostitution.

In order to convict a defendant for agreeing to engage in an act of prostitution, the prosecution must prove, beyond a reasonable doubt, that:

The defendant agreed to engage in sexual intercourse or any lewd act in exchange for money or other consideration.
The defendant did so with the specific intent of engaging in sexual intercourse or any lewd act in exchange for money or other consideration.
In addition to the agreement, the defendant performed an act in furtherance of engaging in sexual intercourse or any lewd act in exchange for money or other consideration

The main difference from solicitation is the third element: that the defendant performs an act in furtherance of engaging in prostitution. Without this act in furtherance, the defendant cannot be guilty of agreeing to engage in prostitution.

The kicker to this charge, however, is that the person who makes the solicitation need not possess the same intent to engage in the act of prostitution. This allows a defendant to be found guilty when the solicitor is really an undercover cop.

Act in Furtherance
An “act in furtherance” of engaging in prostitution must be more than just accepting the offer. It must be something that makes it clear that an agreement to engage in prostitution has occurred. The act also may take place at any time—before, during, or after the agreement has been reached. This may include:
Paying, accepting******, or acquiring the agreed-upon money for the exchange
Driving to a location at which the act of prostitution is to take place
Clear, unambiguous speech that is something more than just accepting the offer
Additionally, the “act in furtherance” is a necessary element of the formal written charge against you. If it is not described in the formal charge, your charge may be dismissed.

Evidence of Guilt
Your personal attire and items that you carry may be evidence used against you. Such items may include condoms, a client book, or large sums of cash. Possession of these items, however, is not sufficient by itself to prove you are guilty of agreeing to engage in an act of prostitution.

Misdemeanor Prostitution Penalties: More than you bargained for
A defendant convicted of engaging in prostitution, solicitation, or agreeing to engage in an act of prostitution faces criminal penalties including:

Up to 6 months in county jail and/or
Up to $1,000 in fines

Additionally, prostitution and solicitation are “priorable” offenses. This means that the penalties increase for each subsequent offense of which the defendant is convicted. These increased penalties include:

2nd Offense:
Minimum 45 days in county jail

3rd Offense:
Minimum 90 days in county jail

Additional Penalties if a Car is Used in Commission of Offense

If a car is used during the commission of one of these offenses, and it occurred within 1,000 feet of a residence, the court may suspend your driver’s license for 30 days OR issue you a restricted license* for 6 months.

Additionally, if you commit one of these offenses in Los Angeles while in your car, the government may seize your vehicle under California asset forfeiture.

*A restricted license allows you to drive only between home and work as well as within the scope of your employment.

Sex Offender Registration under California Penal Code section 290 (PC 290)
Although a prostitution or solicitation conviction under PC 647(b) does not require automatic PC 290 sex offender registration, the judge could order you to register as part of your sentence.

This order is rare, but is more likely to occur if the judge determines that you committed the act “as the result of sexual compulsion or for sexual gratification.”

If you are ordered to register under PC 290 as a sex offender and fail to do so, it is a separate felony offense. Failure to register under PC 290 carries separate and serious criminal penalties.

Legal Defenses to Charges of Prostitution or Solicitation
With the social stigma surrounding prostitution, a prostitution or solicitation conviction is something no one wants on his/her record. Fortunately, there are several strong defenses to a charge of prostitution or solicitation that the skilled attorneys at McDowell Defense are well-experienced in using to defend against clients’ charges. These defenses include:

Entrapment
Untrustworthy Evidence
Insufficient Evidence
Mistake

Entrapment
Entrapment is an improper police procedure in which a cop induces a person to commit a criminal offense that s/he would otherwise have been unlikely to commit. The key is showing that the defendant did not have a prior disposition to engage in the criminal conduct, and the actions of the police would usually have caused a law-abiding person to commit the act. In California, if a defendant engages in a criminal offense under these circumstances, s/he is not guilty of the offense.

Because prostitution arrests often involve undercover cops, entrapment can be a powerful defense to a prostitution or solicitation charge. Often times a person charged with prostitution or solicitation is, in fact, a normally law-abiding citizen who is lured into the act by an undercover cop. In these situations, it is possible to use entrapment as a defense.

Lack of Trustworthy Evidence/Insufficient Evidence
In any criminal case, the prosecution bears the burden of proving the defendant is guilty beyond a reasonable doubt. This requires the prosecution to present enough evidence of the defendant’s guilt.

Often in a prostitution case, the prosecution will present evidence that is not trustworthy. For instance, a police officer may testify about a conversation that took place with the defendant while the officer was undercover. The officer may testify that certain agreements were reached and that certain exchanges were made. In this situation, the jury is to rely on the cop’s testimony. The question here becomes, “Why did the officer not record any of these conversations?” This may present a reasonable doubt as to the trustworthiness of the officer’s testimony—s/he may be lying; s/he may be exaggerating.

Furthermore, the prosecution may present insufficient evidence to prove the defendant’s guilt of prostitution. For instance, there may have only been a vague and ambiguous conversation without a clear agreement. Or the defendant may have been joking with no intent to actually engage in the act of prostitution. In the case of an agreement to engage in prostitution, there may have been no act in furtherance.

Mistake
Another defense against a charge of prostitution or solicitation may be that it was a simple mistake. A defendant might be charged with prostitution or solicitation because s/he was simply in the wrong place at the wrong time and did not know prostitution was involved. The defendant in this situation would lack the required intent to be guilty of prostitution or solicitation.

The attorneys at McDowell Defense are very experienced in using these defenses to fight clients’ charges of prostitution or solicitation. Given the facts of a certain case, any or all of these can be very powerful tools with which to fight the charge(s). An experienced defense attorney will examine the facts and evidence and skillfully use every defense available in an artful way to obtain the best outcome possible for the client.

Reduced Charges
Often, defending against a charge of prostitution or solicitation under PC 647(b) may involve having the charge(s) reduced to a lesser offense. Common lesser offenses to which the charge(s) may be reduced are Disturbing the Peace under PC 415 and Trespass under PC 602.
These charges carry lesser penalties than prostitution or solicitation. Additionally, these charges have nothing to do with an act of prostitution, which means employers and other people you know will not know that you originally faced charge(s) for a prostitution offense.