While it is true that prostitution is currently legal, albeit with significant regulation, in the state of Nevada; in California prostitution and the act of seeking a prostitute (called "solicitation") are illegal in all circumstances. Technically, solicitation and prostitution are not crimes in and of themselves. Rather, they constitute disorderly conduct, which is a misdemeanor.

In simplest terms, prostitution is a transaction whereby one person (the prostitute) engages in sexual intercourse or other sexual behavior in exchange for money, or other things of value. Solicitation is the other side of that transaction. A person who solicits prostitution asks to pay a prostitute for sex or sexual behavior, or accepts an invitation to do so. Both of these things are prohibited by California Penal Code section 647(b).

While both crimes are classified as misdemeanors, repeat offenders will face escalating penalties for subsequent offenses that include increasing amounts of mandatory jail time.

Also, prostitution and solicitation are crimes that can only be committed by adults. In fact, as of recently, minors who engage in prostitution are specifically excluded from the statute. Minors who solicit sex from a prostitute are not actually covered by section 647(b), but under California law, a minor is incapable of giving consent to have sex; so there is likely good reason why the statue does not address solicitation by minors.

Police "Sting" Operations:

Police departments, and in particular vice divisions within those departments, are well known for engaging in "sting" operations aimed at deterring prostitution. Essentially, a officer from the vice division will pose as either a prostitute or an individual soliciting prostitution (commonly referred to as a "John,") and attempt to engage their target so that they offer or solicit prostitution. Then, after their target engages in some overt act in furtherance of prostitution, they are arrested and charged.

There is no question that sting operations by law enforcement are permitted under the law. In fact, Penal Code 647(b) specifically provides that a person may be convicted of either solicitation or prostitution regardless of whether the person they solicit or make an offer to, actually intended to engage in sex. It is written this way, in part, to allow law enforcement to engage with potential prostitutes and Johns in order to get them to incriminate themselves.

While the results of such sting operations are often upheld in court, or lead to plea agreement; they can be problematic if the target of the sting, either the alleged John or the alleged prostitute; are not actually seeking or offering prostitution, but are simply in the wrong place at the wrong time, and don't really know what is going on around them.

The primary concern in such a situation is what is generally referred to as entrapment. Entrapment occurs, in the context of a prostitution sting operations, when a law enforcement officer acts to incite, encourage or coerce a person to either solicit or offer sex in exchange for money. In most circumstances, law enforcement is only permitted to create an opportunity for someone to commit a crime. Anything more, and there may be grounds to argue that law enforcement engaged in entrapment, which is illegal and cannot form the basis of a criminal prosecution.

Prostitution versus Pornography:

There is a tension between prostitution, which is illegal, and pornography, which is both legal and constitutionally protected as free speech. The question can then be asked, if I engage the services of a prostitute (or offer sex for money,) can I just film the encounter so that I am not breaking the law?

The simple answer is no. If that were the case, anyone could avoid prosecution for solicitation or prostitution simply by taking a camera or mobile phone with them (which most of us already do; all day, every day) and taking some pictures or recording a video.

The reality is that there are certain formalities, or extra steps, that go into producing pornography. These are things such as obtaining business licenses, obtaining written consent from anyone appearing on camera and mandatory HIV (and other STD) testing that needs to be performed. Also, the true purpose of engaging in sex on camera is relevant to whether that sex constitutes prostitution or pornography. If the true purpose if the sexual gratification of the John, then it is likely prostitution. If the true purpose is financial gain (of someone other than the alleged prostitute,) then it may well be pornography.

There is no clear line between the two. There are any number of situations where the line is blurry at best. It is also not clear whether making a video of a sexual encounter can be helpful or harmful. On the one hand, it may give rise to the defense that an individual was producing pornography, not engaging in prostitution. On the other hand, any such video may simply be fairly conclusive evidence of a crime.

The bottom line is that paying for sex, or being paid for sex, does not automatically become legal if pictures are taken or video of the act is recorded.

How Does a Prosecutor Prove Prostitution:

For a defendant to be proven guilty of prostitution, a prosecutor must prove the following:

  1. The defendant is at least 18 years old;
  2. The defendant specifically intended to engage in sexual intercourse, or other sexual behavior with another person, and communicated that intention;
  3. The defendant specifically intended to be paid for engaging in that behavior, and communicated that intention; and
  4. The defendant committed an act in the furtherance of that intention.  

How Does a Prosecutor Prove Solicitation:

For a defendant to be proven guilty of solicitation, a prosecutor must prove the following:

  1. The defendant is at least 18 years old;
  2. The defendant specifically intended to engage in sexual intercourse, or other sexual behavior with a prostitute, and communicated that intention;
  3. The defendant specifically intended to pay for engaging in that behavior, and communicated that intention; and
  4. The defendant committed an act in the furtherance of that intention. 

The last part of the second requirement, that the defendant's intention be communicated, will often be verbal, but does not need to be. In some cases a defendant's intention can be inferred from their actions, such as opening a car door, or pulling out a stack of cash.

The third requirement for each offense,that the defendant acted on their intention, is essential to convict a defendant of either prostitution or solicitation. Words alone are not sufficient. The act in furtherance of the crime does not need to be sexual in nature, though it often is. Essentially any act that shows the defendant intended to participate in an exchange of sex for money is sufficient.

Penalties For Prostitution and Solicitation:

Prostitution and solicitation are two of those crimes that offenders tend to repeat more frequently than other types of crimes. California law recognizes this in that the Penal Code treats them as "priorable" offenses. This means that on a second, third or subsequent conviction, the penalties increase. However, prostitution and solicitation are, in all cases, a misdemeanor.

Prostitution/Solicitation - First Offense:

  1. Imprisonment in a county jail for up to six months; and/or
  2. A fine of up to $1,000.00; and/or
  3. Three years of summary probation.

Prostitution/Solicitation - Second Offense:

  1. Imprisonment in a county jail for up to six months; and/or
  2. A fine of up to $1,000.00.; and/or
  3. Three years of summary probation; and
  4. A minimum of 45 days in county jail.

Prostitution/Solicitation - Three or More Convictions:

  1. Imprisonment in a county jail for up to six months; and/or
  2. A fine of up to $1,000.00; and/or
  3. Three years of summary probation; and
  4. A minimum of 90 days in county jail.

If the crimes of solicitation or prostitution are committed while in a motor vehicle, and the vehicle was within one thousand feet of an area zoned as residential; then some additional penalties can, and often will apply. Specifically, the defendant (typically, but not necessarily on a solicitation charge) will have their driver's license suspended for up to thirty days, and/or have their license put on a restricted status for up to six months.

Typically, a prostitution or solicitation offense will not result in a requirement of sex offender registration. However, it is technically a possibility, as just about any crime can result in a requirement of sex offender registration if the court determines that the offense was committed because of a "sexual compulsion" or to obtain sexual gratification. 

Defenses to Prostitution and Solicitation Charges:

  • Lack of Specific Intent - Because prostitution and solicitation are specific intent crimes, the defendant must have specifically intended to offer or accept money in exchange for sexual intercourse, or other sexual behavior. If a defendant can show that they never formed that specific intent (e.g., they specifically intended to have sex, but did not intend to pay for it,) then they cannot be convicted;
  • Entrapment - Law enforcement, in the context of something like a sting operation, is permitted to create an opportunity for individuals to commit crimes, but they are not allowed to incite, encourage or coerce individuals. If a law enforcement officer steps over that line, then a defendant may be able to avoid a conviction by demonstrating that they were entrapped;
  • Lack of Evidence - The intent element of specific intent crimes can be difficult to prove. In the case of solicitation and prostitution it is not sufficient simply to show that sex was had, and money changed hands. It is entirely possible for those two things to occur independently of each other. A prosecutor must prove, with admissible evidence, that the two things are connected. If they cannot, the defendant cannot be convicted.

 How We can Help:

The laws regarding prostitution and solicitation are tricky, and you need an experienced, knowledgeable attorney to guide you through the system.  Often, the police will charge prostitution where they do not have sufficient evidence to prove a case.  You need someone who understands the law and what the prosecution must prove and will fight for you at every step.  When you have been accused of solicitation or prostitution, in steps David Foos to provide for you the best possible defense.  If important, David will employ his team of investigators to speak with the witnesses and gather the evidence.  You can be sure that David will be fighting for you every step of the way.  Call David our Sacramento criminal attorney at 916-779-3500, or reach him on the web at Contact@foosgavinlaw.com.  Remember – the first consultation is at no cost to you.