Prostitution, Solicitation, and Other Sex-for-Fee Crimes
California Penal Code 647(b) defines the state's prostitution crime as agreeing to engage in, or actually engaging in, any act of prostitution intending to receive something of value in exchange.
Put simply, it's a crime to make an offer to pay or accept money or something of value in exchange for a sexual act. PC 647(b) can be filed against both the prostitute and the “john,” who are the customers.
Many prostitutes in California have “pimps” who are responsible for handling all their business and financial issues, but they are typically prosecuted under pimping and pandering laws under Penal Code 266h and 266i PC.
Prostitution does not require pursuing just sexual intercourse. An act of prostitution can involve either sexual intercourse or another lewd act done in exchange for something of value.
California Criminal Jury Instruction 1153 defines a lewd act as:
- “touching the genitals, buttocks, or female breast of either the prostitute or customer with some part of the other person's body for the purpose of sexual arousal or gratification of either person.”
PC 647(b) prostitution and solicitation are both misdemeanors crimes in California and a conviction does not require registration as a sex offender under Penal Code 290 PC.
To give readers a better understanding, our Los Angeles criminal defense attorneys are reviewing the laws below.
Solicitation of Prostitution
Penal Code 647(b) also criminalizes solicitation of prostitution, meaning the act of the customer who seeks to pay another person for sexual intercourse or a lewd act.
As noted, both the prostitute and customer or john can commit the sex-for-fee crime that Penal Code 647(b) defines. The prostitute and customer are subject to a charge under the same statute, facing the same penalties.
Under Penal Code 647(b), an act of prostitution involves willfully engaging in sexual intercourse or lewd acts with another intending an exchange of value:
- “regardless of whether the offer or solicitation was made by a person who also possessed the specific intent to engage in an act of prostitution.”
Thus only one of the two persons needs to have intended to engage in prostitution.
The other person may be an undercover officer conducting a sting operation or another innocent person who has no such intent to participate in prostitution.
Loitering for Sex-for-Fee Crimes
Penal Code 653.23 extends the sex-for-fee crime beyond prostitution or solicitation to prostitution to include loitering for purposes of a prostitution crime.
Under this statute, it's a crime to loiter in a public place with the intent to engage in prostitution. Put simply, you could be arrested for just having the intent to solicit another person for prostitution, even if the sexual act never occurs.
The required factor of whether someone was “loitering” in a public location to commit prostitution fact based case-by-case examination of the circumstantial evidence.
Clearly, prostitutes are not going to make a verbal announcement about their intent, so the prosecution will rely on evidence that the circumstances of the loitering openly demonstrate that their purpose was to induce, entice, or solicit prosecution.
Penal Code 653.23 lists these acts that may constitute criminal loitering while stating that the list is not exclusive:
- repeatedly speaking with prostitutes or customers;
- repeatedly monitoring or watching those engaging in prostitution crimes;
- repeatedly stopping pedestrians or motorists to facilitate prostitution;
- repeatedly conversing with pedestrians or motorists for prostitution; and
- repeatedly beckoning to pedestrians or motorists for prostitution.
A public place is any area that is open and accessible to the general public, such as a sidewalk, street, alley, parking lot, public park, among others.
Having the “intent to commit prostitution” is defined as engaging in sexual activity in exchange for money of other types of compensation.
Pimping or Pandering Crimes
An intermediary or pimp may also be involved in the sex-for-free crime, in addition to the prostitute or customer.
Pimping involves receiving profits from facilitating or arranging prostitution. The closely related act of pandering involves recruiting or persuading another to become or remain a prostitute.
California criminalizes the conduct of the middleman or pimp under Penal Code 266h PC criminalizing pimping, Penal Code 266i PC, criminalizing procuring prostitutes.
Pimping and pandering are both serious felony crimes that involve the unlawful trafficking of others for purpose of commercial sex acts. Put simply, it's an exchange of money or other things of value for sexual acts, i.e. prostitution.
Pimping and pandering are so similar that it's common for a defendant to be charged with both statutes, but they have distinct elements of the crimes.
For example, “pimping” is related to the person who receives the earnings from a prostitute, while “pandering” refers to someone persuading another person to either become, or remain, a prostitute.
Supervising or Aiding a Prostitute
California Penal Code 653.23 PC makes it a crime for someone to direct, supervise, recruit, or assist another person to commit prostitution, solicitation, loiter with the intent to commit prostitution activity.
This statute also applies to any person who receives money that was acquired by another person in a prostitution related activity.
Put simply, this statute is commonly used because it makes it easier for police to arrest people for prostitution-related activity, which is one of the primary reasons this law was enacted.
An example includes a situation where somebody operates a massage parlor that does provide actual massages, rather prostitution services.
PC 653.23 is a misdemeanor crime punishable by up to 6 months in county jail and a maximum fine of $1,000.00.
Punishments for Sex-for-Fee Crimes
Defendants convicted of prostitution or solicitation for the first time commit a misdemeanor offense punishable under by:
- up to six months in jail,
- and up to a $1,000 fine.
Penal Code 647(k) raises the punishment for a second offense or subsequent offense to up to one year in jail and a $2,000 fine.
Penal Code 647(l) raises the punishment for offenses involving minors to up to one year in jail and a $10,000 fine.
If the defendant committed the offense in a car within one thousand feet of a residence, then the court may suspend the defendant's driver's license for up to thirty days and restrict the license for up to six months.
Several other crimes, in addition to pimping, pandering, and loitering, can relate to a prostitution or solicitation charge:
- Penal Code 647(a) PC criminalizes lewd or dissolute conduct in public and solicitation to lewd public conduct as a misdemeanor offense;
- Penal Code 314 PC criminalizes indecent exposure of one's genitals, annoying or offending other present persons as a misdemeanor offense;
- Interactions with prostitutes, minor prostitutes, and their pimps may also lead to rape or statutory rape charges under Penal Code 261 PC;
- Penal Code 236.1 PC makes human trafficking a crime and described as depriving someone of their personal liberty to violate the pimping and pandering laws in California.
Best Defenses to Sex-for-Fee Crimes
Defenses to sex-for-fee crimes may include that the defendant did not intend an exchange of anything of value.
Consensual sexual intercourse or other sexual acts between adults may be lawful if not in exchange for something of value.
The value, though, need not be money. One who offers or accepts food, drugs, clothing, or payment of rent or debt in exchange for sexual acts may have committed prostitution or solicitation to prostitution.
Entrapment may be another defense if the undercover officer used pressure, harassment, or fraud that would overcome the resistance of a law-abiding person.
Prosecutions for prostitution or solicitation may also lack willing and credible witnesses, leaving reasonable doubt on the proof of one or more elements of the crime.
We might be able to argue you were only seeking to have a sexual encounter, but there was never an intent to engage in sexual activity in exchange for some type of compensation.
Further, perhaps we can also argue you didn't know they were a prostitute. Through prefiling intervention, we might be able to persuade the prosecutor from filing formal charges before court.
Eisner Gorin LLP is based in Los Angeles County and you can contact our law firm for an in initial consultation at (310) 328-3776.