Prostitution and Solicitation
The LA Criminal Defense Attorney law firm has defended many clients in different criminal cases across Los Angeles, California for many years. Our seasoned lawyers have many years of experience to know the ins and outs of various elements to ensure the best possible outcome in criminal cases. We have developed specific strategies and techniques to defend these types of cases in correlation with California Laws. Early intervention could make the difference between a criminal conviction and having your case being dismissed completely. Our criminal defense attorneys can spot weaknesses in the prosecutor’s evidence and find possible routes to get favorable conditions on prostitution and solicitation charges.
What is Solicitation and Prostitution under California Law?
In the state of California, solicitation, and prostitution both fall under the Penal code 647(b). The penal code differentiates the two as; the actual engaging in sexual acts for compensation referred to as prostitution and the second, which is solicitation as offering or consenting to take part in sexual activity. The law states that for solicitation to happen you have to offer someone compensation and in return, they must perform sexual acts. In this setting, you are referred to as the customer. On the other hand, if you accept compensation of any kind in return for any sexual favors, the state of California considers you a prostitute. For the actual solicitation of prostitution, there is a likelihood of being charged with harsh penalties, not forgetting the social embarrassment you will experience. If you happen to be charged with solicitation or prostitution, you should understand the full nature of the charges and the defenses that you will use in court, not forgetting the penalties and punishments you may receive if found guilty.
It is important to note that there is a difference between solicitation and prostitution. For prostitution to occur, an individual must engage in a sexual act with another individual for the exchange of a fee or any other compensation. For a solicitation charge, it might be only the act of requesting for another individual to engage in prostitution. Both occurrences can, however, be found guilty of solicitation.
One thing you should realize is that solicitation of prostitution does not require you to complete any sexual act. That means that even the minimal agreement to offer a sexual act in exchange for any fee is a strong case in any solicitation charge. This will involve all the parties that were in that agreement. This is what is considered as the most basic charge of solicitation. Additionally, the charge can involve an even larger kind of misconduct. According to the California Statute, Penal code 647(b), forbids three (3) major types of behaviors:
Participating in any act of prostitution
Requesting any act concerning solicitation or prostitution
Any agreement to engage in the act of prostitution
With the prosecutor, each specific behavior will determine what their team wants to prove. The third party mostly referred to as the “pimp” or “Madame”, might face even stiffer penalties compared to the two who were initially involved in the agreement. Under state law, pimping and pandering are two separate crimes found in penal code 266 and 266i.
Loitering with the Purpose of Engaging in a Prostitution Offense
Penal code 653.22 under the California law details loitering with the aim of engaging in a prostitution offense. For the evidence to apply in this charge, you must demonstrate the purpose of inducing, enticing or soliciting prostitution. Simply, if you are walking up and down a street at a certain time or wearing provocative clothing in certain public areas, you could be charged under the 653.22 Penal code. For you to fall under this category, the court must prove that you were loitering in a public place and had specific intentions to commit prostitution.
Children and Prostitution
Note that any child under the age of eighteen (18) cannot be found guilty in the state of California on solicitation and prostitution charges. In 2016, the SB 1322 revised the penal code 647 and stated that any child under the age of eighteen (18), found guilty to committing an act of prostitution will be deliberated as a "commercial sexual exploited child". Since there will not be any charges against the child, they will not face a juvenile hall or jail. As an alternative, the child’s case will be decided as a child reliant on the court. For that reason, the child will be taken into temporary custody, as clearly stated under the welfare and institutions code 305. Additionally, if the child is taken into provisional protection, the judge will have the right to order them to be placed for up to fifteen (15) days under the care of a family member or an emergency shelter.
Penalties and Punishments for Prostitution or Solicitation in California.
Both offenses are considered as misdemeanors in the state under penal code 647. There are different vantage points for the prosecutor to give evidence, to find your guilt. For example, the first prostitution or solicitation offense will include the following:
Fine for up to one thousand dollars ($1000).
Up to six months, in the county jail.
Take an HIV/AIDS education classes as well as an AIDS test.
For any succeeding convictions under 647 PC, it will be referred to as a priorable offense. For priorable offenses, a second offense for the same crime will lead to an increase in the following convictions:
Under the second offense, you will serve a compulsory minimum of up to around forty-five days in any county jail.
For any third (3rd) or subsequent offense, you will face a compulsory ninety (90) days in any county jail.
Both the client and the prostitute may face additional penalties if they include the following regulations:
The said client was in a vehicle at the time of the crime
The crime was done in a vehicle
The supposed offender was close to one thousand (1000) feet to their own residence
Extra punishments include a license suspension for thirty days (30) for the driver or an obstructed license for up to six (6) months.
A conviction under prostitution or solicitation will not have an automatic order to get registered as a sex offender in California. Conversely, the court may choose to order the respondent to be listed as a sex offender, if the crime was a result of any sensual coercion, or if the prosecutor proves it was for sexual gratification. But in a more practical matter, the Penal code rarely results in a sex offender registration.
Local jurisdictions have the power to impose extra penalties for the same crime. One example is if the respondent was in the Los Angeles area and in a vehicle, the local government can take hold of and forfeit the automobile, the act is commonly referred to as a “form of the California Asset forfeiture”.
Penalties for California Penal code 653.22(a)
Jail: if you are found guilty under 653.22 PC, your case will be classified as a misdemeanor. You may be sentenced up to one hundred and eighty (180) days in county jail. The judge may give probation without jail, probation under house arrest or even work release. It is a common sentence if you have been found guilty as a first-time conviction under loitering with the intent to commit prostitution.
Mandatory HIV testing: if you are found guilty for any prostitution crime that also includes PC 653.22(a), the judge might order you to submit a test for HIV/AIDS. Additionally, you will be required to attend a sex education class. The main focus of the class is to educate the defendant on STDs and provide key therapy on sexual deviant behaviors.
The judge may decide to give the defendant a restraining order as part of the summary or informal probation. The restraining order will urge the defendant to stay away from parts of the city known to be frequented with prostitutes. For any professional license holder, the license might get revoked, suspended or denied. If you are not a United States citizen at the time of the conviction for PC 653.22(a), you are likely to be deported from the country.
Penalties for Enticing Minors to Participate in Prostitution
Although the law clears any child under the age of 18 of guilty of prostitution crimes, any involvement of an adult during the crime is considered illegal. For any adult involved with a minor in any sexual act, they will be found guilty under Proposition 35, which is referred to as “Californians Against Sexual Exploitation Act”.
If the defendant is found to exploit the underage child for commercial sex, this becomes a human trafficking case regardless if there was any force, fraud or any harassment used. The charge that the defendant will face is a felony case. Under California, human trafficking laws and punishment are very severe.
Legal penalties fall under the three (3) categories:
If you are convicted of 236.1(a) PC, where you deprived a minor of their right through enforced labor, the jail time will be a minimum of up to twelve (12) years, a fine of up to half a million dollars ($500,000).
Under section 236.1(b), depriving the rights and freedom of the minor through pandering or pimping will get you up to twenty (20) years in any state prison in California, legal fees amounting up to half a million dollars ($500,000), registration as a sex offender under Penal code 290 and having a felony probation.
For the third charge which is penal code 236.1(c), where the defendant encouraged an underage child to participate in prostitution or solicitation, the consequences will lead up to a minimum of twelve (12) years in state prison, a half a million dollars ($500,000) in fines, formal probation, and the defendant becomes a registered sex offender. Additionally, if the defendant used any violence, fear, fraud or threat to injury to commit this crime, the sentence will increase to fifteen (15) years. Consequently, if there are any physical injuries to the minor during the crime an additional five (5), seven (7), or even ten (10) years will be added to the sentence.
Related Charges to Prostitution and Solicitation
Both Penal code 266h referred to as Pimping and Penal code 266i known as Pandering are two different crimes. Penal code 266h is where a defendant is knowledgeably living with a prostitute or receives parts of the pay. It doesn’t matter if you took any part of the prostitute earnings for the exchange of finding clients. Pandering involves hiring or encouraging individuals to be or continue being a prostitute. Both are considered as felonies under penal code 266, the sentence is between three (3) to six (6) years in state prison.
Penal code 647(a) PC also referred to as lewd conduct in public; makes it illegal to be involved in any lewd act in any public property/area or to implore another individual to do so. Passers-bys and any prospective customers are usually accused of both 647(a) and 647(b) penal codes. Subsequently, most the officers watch from a distance, so most lewd conduct cases are usually hard to prove in court. Most of the crimes under it will fall under a desirable plea bargain.
Indecent exposure also referred to as penal code 314 PC; the California law prohibits individuals from exposing genitals in public. For you to be found guilty under this law, you must intentionally intend to direct everyone’s attention to your genitals. It's considered a misdemeanor and the sentence can be up to six (6) months in jail.
Penal code 653.23 PC also known as Supervising or aiding a prostitute; It is closely related to pimping and pandering 653.23 PC. If the individual basically helps another individual to commit prostitution or solicitation, you will be accused of aiding in prostitution. Generally, it’s a misdemeanor with consequences of up to six (6) months in the state penitentiary, plus a fine of up to one thousand dollars ($1000).
How a Prosecutor Proves Prostitution and Solicitation Charges
Since both crimes are different entities, the prosecutor must prove both in two different ways.
For the court to convict you with prostitution, the prosecuting attorney must prove the following:
That you were involved in a carnal act or lewd deed with another individual, who exchanged the service for a fee e.g. money.
You engaged in the act willfully and not forced in any way.
Evidence of guilt, this usually includes personal attire and items the defendant was carrying. Although they can’t prove the crime using this type of evidence, they can be used against you as an act of proof, they include condoms, a large sum of cash or a client book.
For you to be convicted with soliciting prostitution, the prosecutor must prove the following:
You tried to lure, induce or elicit another individual to be involved in a carnal act or lewd deed in exchange for a fee.
Your main intent was to be involved in the carnal act or lewd deed for the exchange for money. The use of gestures isn't enough to prove this crime.
How a Prosecutor Proves That You Were Loitering for the Purpose of Engaging in a Prostitution Offense.
To be found guilty under this penal code, the prosecutor must give evidence that you were loitering in that area with your explicit intent being to be involved in the crime of prostitution. The PC 653.22(a) provides a list of behaviors that may charge anyone with loitering with the intention to engage in prostitution.
Making a gesture to stop, engage in a dialogue with, or any attempt to engage in a dialogue with passersby, indicating solicitation.
Continuously trying to stop or any attempt to stop any motor vehicle by either waving arms, hailing down drivers and/or making of anybody gestures that indicated solicitation for prostitution.
A previously PC 653.22(a) conviction or 647 that is prostitution within the five years of the arrest.
The circling of any area with a motor vehicle trying to signal, stop or engage a pedestrian or motorists is an indication of soliciting for prostitution.
Engaging in any behavior under this section six months after being previously arrested except for section three (3) or any behavior indicating prostitution activity.
Common Legal Defenses for Prostitution and solicitation
Entrapment is one of the most used types of defense since officers do purposely target prostitutes in order to make an arrest. In legal terms, it is a condition where officers act in a manner that causes law-abiding individuals to commit a crime. Take an example where a police officer sets up a sting operation on an online environment. The officer is using Facebook and identifies a potential prostitute. The officer sends a friend request asking them to arrange a meeting, while the other user says no, but the officer keeps on insisting. After a few exchanges, she finally agrees to meet the officer at the spot dictated. They have a meal and decide to use the hotel, where the officer places the money on the table asking for oral sex and the lady undresses. This is a type of entrapment.
In this type of case, the attorney will use affirmative defense. The affirmative defense simply takes in the defendant defense strategy, where the lawyer has a burden of proof. This burden of proof will always lie with the prosecutor, meaning it is the prosecutor’s sole responsibility to prove that the defendant is guilty. The defense attorney will use the burden of proof to prove the defendant isn't guilty by proving that the entrapment occurred during the arrest. The attorney does not need to prove beyond a reasonable doubt but instead needs to show it is more than likely that the officer was engaged in the entrapment.
Questioning the Evidence
The evidence is key when considering guilt as the burden of proof will always rest on the prosecutors. There two ways you could use the evidence as a defensive move; questionable evidence, and insufficient evidence. Insufficient evidence and questionable evidence are two different subjects;
Questionable Evidence: This is where your attorney shows evidence not to be trustworthy to the court or jurors. The evidence will involve the person in the alleged crime. Take for example where the officer was fitted with any auditory or optical recording instruments. The prosecutor must answer as to why it wasn't presented or shared with the jury. If the attorney can prove that the evidence is doubtful, then the jury can't conclude that the defendant is guilty beyond any reasonable doubt.
Insufficient evidence: The use of insufficient evidence is another key step to winning a case against the prosecutor. The prosecutor may make a believable case in the eyes of the court or jurors but lacks enough evidence to prove that you are guilty. For example, it is when the prosecutor can’t prove beyond a reasonable doubt the intent of the defendant.
Lack of intent
For the prosecutor to prove an individual is guilty on solicitation charges, they will have to prove that the person’s main intention was to engage in the act of prostitution or solicitation. What if the defendant unwittingly or unknowingly exchanged money for a sexual act or the vice versa? The prosecutor will be unable to establish the defendant’s intentions. For instance, where a defendant enters a massage parlor for a full-body massage. The defendant didn’t get the memo or secret code that full massage was a code for a sexual offer, then the evidence will show, the defendant never intended to act on the evidence. In other words, the lack of intent is when you mistake a fact, simply rendering you not guilty for the crime.
This is when the defense attorney tries to prove to the court, you are not the individual who should be charged for the crime. Your innocence always relies on the fact that you were not the person who committed the act or you were at the wrong place at the wrong time. Simply, the defense will prove the lack of intent or the defense may say you were not the person who commited the crime. Either way, it will mostly depend on your case.
If you are being charged with a crime feel free to contact our Los Angeles Criminal Defense Lawyer for a free consultation.