Are you facing legal charges of prostitution or solicitation in California? Though these are serious sex crimes that are sometimes confused as the same crime, they are in fact two different crimes. As common with sex crimes, both prostitution and solicitation can be tricky to prove in a court of law.
Prostitution and solicitation are complicated because they can involve a whole host of people, from professional (but currently illegal) sex workers, to people down on their luck, to unknowing customers. Additionally, these crimes, often mentioned in the same sentence, are not the same thing, but both the person “selling” and the person “buying” can be caught and tried for them.
At Long Beach Criminal Attorney, we specialize in a few areas of criminal defense, including against charges of solicitation, prostitution, and related crimes. Our expert legal team of defense attorneys and legal professionals serve clients in Long Beach, Torrance, and the wider Southern California region. We work hard, and you can rely on us to treat you and your case fairly and with the utmost respect, something that other defense attorneys may not have time to offer you.
Because sex crimes in California can be very specific and nuanced, we put together this article as an introduction to prostitution and solicitation. Start here to understand these California state crimes, but remember that this article is informational only. It should not be used as legal advice, as only a legal professional with specific knowledge of your case and the applicable laws should give such guidance.
What is Prostitution?
At its most basic definition, prostitution is the practice or occupation or having sexual activity with another person(s) in exchange for money or another form of payment.
The State of California makes prostitution a misdemeanor crime, per California Penal Code Section 647(b), for anyone aged 18 or older who is found guilty of any of the following situations:
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Making or receiving payment (of money or other goods or consideration) in exchange for engaging in a sexual act. (This is known as prostitution.)
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Soliciting (asking or offering) an act of prostitution.
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Agreeing or consenting to engage in a prostitution act, even if you do not actually commit the act.
Based on this description, prostitutes may be found guilty of prostitution, but so may any “customers”, that is the person buying the sex. Sometimes these customers are known as “johns”.
Part of understanding prostitution is understanding what is meant by engaging in a sexual act. The State of California defines such activities as willfully engaging, with another person, in either sexual intercourse or a lewd act. A lewd act is any act wherein one person touches the buttocks or genitals of any person, male or female, and/or the breast of a female with the intention of arousing or gratifying himself or herself or another person in a sexual manner.
What is Solicitation?
Often heard in association with prostitution, solicitation is a different crime, although it can be applied in the same situations. Solicitation is the act of asking or requesting another person to engage in an act of prostitution with the intent of engaging in that prostitution act. This means that both the prostitute and the customer can be guilty of solicitation, often depending on who began the interaction.
Importantly, proof of intent is necessary to a guilty verdict in a solicitation case. Proving intent often lies in the offer to pay money or other goods or consideration (drugs, favoritism, another offer, etc.) in exchange for sexual engagement. The other party, whether the prostitute or the customer, need not have had intent. For example, you could be charged with solicitation if you offered money in exchange for sexual intercourse with another person, even if that person was not a prostitute, was a prostitute but did not agree to the transaction, or was an undercover cop pretending to be a prostitute.
Certain situations that can be understood as innocence are often not sufficient for establishing intent. For instance, you may have been in a neighborhood or street that is notorious for prostitution without intending to solicit for sex. Or, you may have waved or nodded at another person or simply stood on a street corner, but your intent for sexual solicitation is not clear merely by these actions.
Are Prostitution and Solicitation the Same?
No, prostitution and solicitation are not the same crime. Though they are often heard in connection, they are separate crimes. For prostitution to occur, a person must actually and willfully engage in a sexual act with another person in exchange for money or other compensation (such as drugs, food, etc.). Solicitation, on the other hand, is the mere request and intent to engage in a sexual act, regardless of whether the person gives or receives the agreed compensation.
The real difference lies in whether the act occurred – prostitution doesn’t occur unless the sexual act has occurred, whereas solicitation can occur without the sexual act.
California Penal Code Section 647(b) governs both the crime of prostitution and the crime of solicitation.
Is Prostitution Legal in California?
No, the State of California does not recognize prostitution as a legal activity. In a few U.S. counties and other countries, prostitution is legal, which means that sex workers who comply with certain government rules can offer sexual acts and engagement as a business.
In 2017, the State of California did move closer to legalizing prostitution thanks to a case heard by the 9th U.S. Circuit Court of Appeals, located in San Francisco. The law prohibiting prostitution has been around for nearly 150 years, and certain groups are looking to overturn the ban, citing safety concerns, personal rights, and business savvy. In 2018, however, the appellate court rejected the case, citing public interest.
Who Can Be Found Guilty of These Crimes?
Depending on the situation, both “buyers” of the sexual engagement and “sellers” of the sexual engagement can be guilty of prostitution or solicitation or both. Those seeking to pay for sexual engagement can be anyone over the age of 18: man or woman, heterosexual or homosexual, etc. These buyers may be frequent purchases of sex acts, commonly known as “johns”, or they may be a person who’s offering money or another good to someone in exchange for sex as a one-off situation.
Similarly, the people accepting payment in exchange for a sexual act can be male or female, gay or straight, or other. They may be a regular sex worker or it may be a one-time situation wherein they are accepting payment for the activity.
It is common for professional sex workers to have a middleman who establishes some routines, safety, or expectations for the sex workers in exchange for a cut of their income from prostitution. These middlemen, commonly known as “pimps”, are typically not charged with the crimes of prostitution or solicitation. Instead, other laws are likely to apply, such as:
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Pimping and pandering (California Penal Code Sections 266(h) and 266(1))
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Supervising or aiding a prostitute (California Penal Code Section 653.23)
Common Defenses for Prostitution and Solicitation
If you are formally accused (charged) with prostitution or solicitation in California, you should engage the help of attorneys who are experienced with situations similar to yours. A criminal defense attorney who specializes in sex crimes or prostitution can consider a range of defense strategies for your case. The following sections outline common strategies for defending against a charge of prostitution:
Entrapment
Entrapment is a common defense for prostitution because police departments do sometimes intentionally target prostitutes in order to make arrests. Entrapment is the legal term for any situation wherein a police officer acts in a manner that causes an otherwise law-abiding person to commit a crime.
For instance, a police officer looking to trap or ensnare a person on a prostitution or solicitation charge may pose as a “customer” seeking sexual engagement in exchange for payment. This police officer by ask, coax, flatter, or otherwise appeal to a person who is not offering prostitution in a manner that convinces the person to offer (solicit) some sexual situation. At this, the police officer may make an arrest, leading to formal charges of solicitation or prostitution. Such entrapment is illegal.
Importantly, entrapment in California is an affirmative defense. An affirmative defense means that when a defendant uses this defense strategy, the defendant and the defense lawyer now have the burden of proof. Typically, the burden of proof lies with the prosecuting attorney, which means it is the prosecuting attorney’s responsibility to prove the defendant guilty.
However, in an affirmative defense like entrapment, the defense attorney has the burden of proof and must prove the defendant not guilty by proving that entrapment did indeed occur. Interestingly, this need not be proven beyond a reasonable doubt; instead, the defense need only show that it is more likely than unlikely that the police officer engaged in entrapment.
Questionable or Insufficient Evidence
The matter of evidence is vital to guilt, and the burden of proof rests with the prosecuting team (the team accusing you of the charge). Questionable evidence is not the same thing as insufficient evidence, however:
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Questionable evidence is any evidence that the court or jurors may not believe to be trustworthy. This may come in the form of police evidence against the person charged with prostitution or solicitation. For example, if an officer was fitted with audio or video recording, why wasn’t the situation recorded and shared with the jury? If the defense attorney can cast any doubt on the evidence, the jury may be unable to conclude that you are guilty beyond a reasonable doubt.
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Insufficient evidence, conversely, may be believable or trustworthy in the eyes of the jurors, but it may not be enough to prove the prosecution’s case. For instance, the prosecuting team may not be able to prove intent.
Lack of Intent
Finding a person guilty of solicitation requires that the prosecuting team prove the person intended to engage in an act of prostitution or solicitation. This means that if a person unwittingly or unknowingly exchanged a good for sexual acts, or vice versa, that their intention cannot be established.
For instance, a person may enter a massage parlor expecting to purchase a full-body massage, not knowing the term and payment was a secret code or lingo for sexual interaction with the masseuse. Or, a person may offer to give another friend money to support a tough situation, and that friend confusingly thinks it is an offer of sex, which perhaps neither person intended.
This situation, known as lack of intent or the mistake of fact, means that you cannot be guilty of the crimes in question.
Innocence
Whether it’s a question of wrong person, wrong place, wrong time, your defense attorney may be able to prove that you are not the person who should be charged with such a crime. This may accompany a defense of lack of intent or it may stand wholly on its own, depending on the details of your case.
Typical Punishment for Prostitution or Solicitation in California
Both crimes, solicitation and prostitution, are misdemeanor crimes in California. (A misdemeanor crime is a lesser crime than a felony.) If you are found guilty of one of these crimes, you will likely be penalized based on whether this is a first or repeat offense. Both crimes are “priorable” offenses, which means that each time you are found guilty of one, your punishment increases.
Common penalties for prostitution or solicitation convictions in California include:
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First offense is punishable with any combination of:
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Maximum of six months in a county jail (not a state prison)
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A maximum fine of $1,000
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Second offense is punishable with:
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A mandatory minimum of 45 days in a county jail (not a state prison)
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Third and subsequent offenses are punishable with any combination of:
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A mandatory minimum of 90 days in a county jail (not a state prison)
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Importantly, these penalties can be increased in certain situations. For instance, if you are found guilty of either prostitution or solicitation and the event in question occurred both in a car and within a residential area (defined as within 1,000 feet of a person’s residence), then the court may issue additional penalties, such as suspending your driver’s license for up to 30 days or issuing a restricted license for up to six months. (A restricted license means you are legally able to drive to necessary locations, such as work or school, but you are not allowed to drive otherwise.)
Additional local governments, such as cities, counties, or towns, may impose additional penalties depending on your situation. For instance, the City of Los Angeles may seize your car if you are guilty of either crime while in the car.
The good news is that even if you are convicted of either prostitution or solicitation, you may not have to register as a sex offender in California. This is important because other types of sex crimes automatically trigger the sex offender registration, but neither prostitution nor solicitation do this. However, a court can order any convicted person to register if they deem it necessary, although this is a rare occurrence.
What to Do When You Are Charged with Prostitution or Solicitation
If you are, or believe you will be, charged with the crime of solicitation or prostitution, know that you have options. First, it is important to remember that a charge (formal, legal accusation) is only that – an accusation. An arrest or charge does not mean that you are guilty.
Here are some steps to follow upon such a charge:
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Write down the details. It may feel silly or unnecessary to record details like date and time, names and places, and topics of conversation, but these can significantly aid your memory and your defense. The more time that lapses between the incident in question and your legal defense means that you may forget details – especially if you don’t think they are important. Write down as much details as you can remember, whether in a notepad, on your cell phone, or elsewhere.
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Collect any evidence. Perhaps you were recording audio or video of the transaction in question that can show that you neither offered or agreed to a transaction for sexual services. Or, perhaps, you have other evidence that indicates what your accuser said happened did not happen.
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Talk with an experienced lawyer. Though there are many types of lawyers, finding one who specializes in criminal defense and sex crimes means you will work with someone who fully understands local and California laws and the local courts that will judge your case. Your lawyer is your best chance for the best defense, so you should share all the details of the incident in question as openly and honestly as possible.
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Know your rights. A charge of a crime is only an accusation, not a determination of your guilt. An experienced lawyer can also help you understand exactly what your rights are, so you can determine whether the police who arrested you stepped too far or acted inappropriately.
Contacting a Premier Prostitution or Solicitation Attorney Near Me
When you’re ready to defend your criminal charges, work with the best legal defense team. Long Beach Criminal Attorney specializes in defending against charges of sex crimes, including solicitation and prostitution. Located in Long Beach, we serve clients across Long Beach, Torrance, and other areas in the region. Give us a call today at 562-308-7807 – we are ready to hear you, respect you, and defend you.
