While many reasonable people believe that prostitution should not even be punished as a criminal act, law enforcement agencies spend a considerable amount of resources to arrest people for these offenses. Additionally, the legislature has enacted a uniquely harsh sentencing scheme for defendants who have prior convictions for prostitution and solicitation offenses. Fortunately, it is often quite difficult for the prosecution to prove the elements of a prostitution offense. This can result in dismissal of a case or a Not Guilty verdict after a jury trial. Additionally, many jurisdictions have diversion programs for first time offenders.
Penal Code Section 647(b) – Disorderly Conduct (Prostitution/Solicitation)
There are three different ways to violate Penal Code section 647(b):
Engaging in Prostitution – Prostitution is defined as exchanging money or other consideration for sexual intercourse or any act that involves touching the genitals, buttocks, or female breast of either person by another person with the intent to arouse or gratify sexually.
SolicitingProstitution – Soliciting is luring or inducing someone to commit an act of prostitution. This charge can be applied against either the prostitute or the “John." In order to prove this charge, a prosecutor must prove not only that the defendant solicited prostitution, but also that the defendant actually intended to engage in an act of prostitution.
Agreeing to Engage in Prostitution – An agreement to engage in prostitution is the counterpart to soliciting prostitution. The party who accepts the solicitation may be guilty of this charge. In order to prove this charge the prosecutor must prove that an agreement to engage in prostitution was made, that the defendant actually intended to engage in prostitution, and that an act in furtherance of the agreement was performed.
Penal Code section 647(b) is a misdemeanor, punishable by up to 6 months in jail and a $1000 fine. If you use a vehicle during the commission of an offense and it is within 1000 feet of a residence, the court may also suspend your driver’s license for up to 30 days or restrict your driver’s license for up to 6 months. A second offense for prostitution carries a mandatory jail term of at least 45 days with no jail alternatives, such as electronic monitoring or work programs. A third or subsequent offense carries a mandatory jail term of at least 90 days, also with no jail alternatives.
Because of the harsh mandatory jail scheme, it is extremely important that a defendant explore every option to avoid any conviction under Penal Code section 647(b). In addition to the trial defenses listed below, your attorney can seek to have your case dismissed, negotiate for a diversion program, or have the charge reduced to lesser offense, such as Disturbing the Peace – Penal Code section 415.
Penal Code Section 653.22 – Loitering With Intent to Commit Prostitution
Sometimes, when the evidence of prostitution is lacking, the District Attorney will charge a defendant with Loitering With Intent to Commit Prostitution, under Penal Code section 653.22. This offense requires that the defendant delayed or lingered in a public place with no lawful purpose and with the intent to commit prosecution. In these cases, it can be difficult for the prosecution to prove the defendant’s intent, but the jury is instructed to look for signs such as flagging down and approaching passing vehicles and pedestrians, circling an area in a vehicle and contacting other motorists or pedestrians, prior convictions for similar offenses, and whether the area is known for prostitution.
Mistake – Sometimes people who are not familiar with the customs and practices of the sex trade, get caught up in something when they really had no intention of committing prostitution. Often there are innocent explanations demonstrating that the intent of the defendant was to engage in legal activities only. Because sex for money agreements are not often stated in explicit terms, there can be a great deal of confusion. This can make it very difficult for the prosecution to prove these cases beyond a reasonable doubt.
Evidence Lacking – Often the police think they have solid proof of an agreement to exchange sex for money, but when the evidence is presented, it is open to multiple interpretations, some pointing to legal conduct. If the police officer did not record the conversation where the alleged agreement took place, jurors can be encouraged to doubt the police officer’s account of the dialogue.
No Intent to Engage in Prostitution – In order to prove that a defendant solicited or agreed to engage in prostitution the prosecutor must prove beyond a reasonable doubt that the defendant actually intended to engage in a sex act for compensation. If the defendant was joking around, flirting, or simply curious, but had no intention of actually carrying out a sex for money exchange, that defendant is not guilty of violating Penal Code section 647(b).
Entrapment – Sometimes police can be so aggressive that they try to get otherwise innocent people to agree to engage in acts of prostitution. When a police officer unfairly pressures or convinces someone to commit a crime, an entrapment defense can result in dismissal of the case.
With prostitution related crimes, the consequences of conviction can be far worse than any problems caused by the prostitution itself. Prostitution is usually a victimless crime, where two consenting adults agree to engage in a transaction, nevertheless it is the only misdemeanor for which the legislature has instituted mandatory jail time and eliminated all jail alternatives for repeat offenders. Jurors are often very sympathetic to defendants in these cases and not happy that police are allocating precious resources on these types of crimes. It is important to fight these cases and send a message to police and prosecutors that they should focus their efforts elsewhere.