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Prostitution and Solicitation

California Penal Code §647(b) makes it a punishable offense to solicit or offer to perform sexual acts for the purpose of obtaining goods, services, money, or anything else of value. If the Prosecution is able to prove their case beyond a reasonable doubt, the Defendant may face significant fines as well as significant time in jail. §647(b) punishes both the person who did the act of prostitution, and the person who solicited the act of prostitution. Thus, an individual who approaches a prostitute and suggests they perform a sexual act for money will be guilty of solicitation, and if the prostitute engages in the sexual act, they will be guilty of prostitution. In order for the crime of Prostitution or Solicitation to be complete, the Defendant must have done an act which evidences a legitimate agreement to engage in sexual relations for the purpose of obtaining money.

Example:

  • Dan approached Denise at a local motel. Dan asked Denise is she would perform fellacio on him for $100. If Denise does an act that shows she has agreed to Dan’s terms, she may be convicted of prostitution, and Dan may be convicted of solicitation.
  • Dan approached a woman at a bar, and suggested that she have sex with him in the bathroom if he bought her a drink. If the woman does an act that shows she has accepted Dan’s proposal, she may be convicted of prostitution and Dan may be convicted of solicitation.
  • Dan is a recovering meth addict. One day Dan saw another man smoking meth by the bus stop. Dan approached the man and offered to perform oral sex on him if the man would let him smoke some of the meth. If the man does an act suggesting he has agreed to the terms, they could both be charged under the statute.

In order to obtain a conviction for prostitution, the Prosecution must prove the following elements beyond a reasonable doubt:

  1. The Defendant performed a lewd act;
  2. The Defendant performed the lewd act in exchange for goods, services, money, or anything else of value;
  3. The Defendant acted willfully.

It is a fundamental principal of criminal law that the Prosecution must prove every single element of the crime the Defendant is charged with beyond a reasonable doubt. If the Prosecution fails to meet this burden, the Defendant cannot be convicted of the crime. As such, a common defense strategy then, is to attempt to negate every element the Prosecution is attempting to prove. The attorneys at Los Angeles Criminal Lawyer have decades of combined experience representing clients accused of all manners of criminal conduct; including prostitution. LACL takes pride in providing superior customer service, and understands that part of their job is to keep their clients informed. The remainder of this article will focus on: (1) the elements of prostitution, (2) the penalties you may face if convicted of prostitution; and (3) what Los Angeles Criminal Lawyer can do to help if you have been accused of prostitution.

Prostitution

Prostitution occurs when an individual performs a sexual or lewd act with another individual for the purpose of obtaining goods, services, money, or anything of value. This crime extends to people who offer, control, or command an individual to engage in prostitution. Thus, if an individual helps another person engage in prostitution (“pimping”), they can also be convicted under this statute.

This element is not satisfied simply because a suggestion was made that one person engage in lewd conduct in exchange for something of value, the Prosecution must introduce evidence which shows unequivocally that there was a mutual agreement, and the individuals did some act in furtherance of that agreement. This is frequently a highly contested element as the Prosecution’s burden makes it difficult to prove the requisite facts.

Sexual Intercourse

Sexual intercourse occurs when an individual uses any portion of their body, or another object, and inserts it into the vagina, anus, or mouth of another person. It is not required that the individual complete the act. The law makes clear that sexual intercourse occurs the moment penetration occurs, regardless of how slight that penetration is.

Lewd Acts

A person has performed a “lewd act” when they touch, or cause to be touched, the butt, breasts, or genitals of another individual for the purpose of sexually gratifying or arousing themselves or the other person.

It bears repeating, that the crime of prostitution occurs once there is an agreement, combined with an overt act that manifests the agreement. Thus, a Defendant could be guilty of solicitation even if the act was never performed

Soliciting?

The crime of Prostitution also includes individuals who solicit the act of Prostitution. Someone has solicited an act of Prostitution when they convince, or attempt to convince, another person to engage in the act of Prostitution. As a result, both the person who approaches the prostitute and suggests they have sex in exchange for money, and the prostitute who agrees to have sex for money, can be convicted under this statute if there is evidence of an agreement, and an act was taken towards completing the agreement.

Willfully act

There are two types of crimes when it comes to the required intent to maintain a conviction; “general intent” and “specific intenti.” General intent is often signaled with the word “willfully”, while specific intent is frequently signaled with the phrase “with the intent to…ii” Battery is a general intent crime. General intent requires that the Defendant intended to engage in the act that gave rise to the battery charges against them. It is no defense to say that the Defendant did not intend the outcome of their action, as that would be a defense to a specific intent crime. The legal community has been engaged in a discussion as to whether this definition is sufficient, it has been suggested that the correct definition of willfully is a person acts “willfully” when they engage in conduct on purpose, they are aware of what they are doing, and they intend to engage in that actiii. For practical purposes, absent extenuating circumstances, this element is fairly easy for the Prosecution to prove; many of the defenses your LACL attorney can raise will be aimed at negating the possibility that the Defendant was acting willfully.

I Have Been Convicted of Prostitution or Solicitation, What Penalties May I Face?

As long as there are no aggravating factors, the crimes of prostitution or solicitation are charged as misdemeanor offenses.

If you are convicted of misdemeanor prostitution or solicitation you will face incarceration in county jail for a period of not more than six (6) months and/or a fine of up to one-thousand ($1,000) dollars.

The crime will become a felony if the Prosecution is able to prove any of the following:

  1. The Defendant has been convicted of solicitation or prostitution before. If the Prosecution proves this, the Defendant will be forced to serve at least forty-five (45) days in county jail.
  2. The Defendant has been convicted two times or more for solicitation or prostitution. If the Prosecution proves this fact, the Defendant will be forced to spend at least ninety (90) days in county jail.
  3. The Defendant tested positive for AIDS after a prior conviction, and has been convicted again.
  4. The Defendant used a vehicle to complete the act of Prostitution and was within 1,000 feet of an inhabited dwelling. If the Prosecution proves this, the Defendant’s license will be revoked for up to thirty (30) days, in addition to the other punishments associated with the crime.
  5. If the Prostitute engaged in sexual intercourse, anal sex, or oral sex, and the Prostitute was a minor, the Defendant will face up to one (1) year in county jail.
  6. If the Defendant engaged in lewd conduct or sexual intercourse with a minor, the Defendant will be fined up to twenty-five-thousand ($25,000) dollars.

I Have Been Accused of Prostitution or Solicitation, How Can Los Angeles Criminal Lawyer Help Me?

The crime of Prostitution or Solicitation is generally treated as a misdemeanor in California. However the crime will become a felony if you have been convicted of the crime before, have tested positive for AIDS, or if the prostitute is a minor. While misdemeanor convictions are not nearly as harmful as a felony conviction, the fact that the conviction for prostitution or solicitation can have an immensely negative impact on your livelihood, reputation, and other interactions.

A criminal conviction will remain on your “criminal background.” Your “criminal background” is essentially a database of every crime you have been convicted of for a period of time. Employers typically conduct a background check on individuals who have applied for employment with their company. Many employers do not want to hire someone with a criminal conviction on their record. Additionally, the crime of prostitution or solicitation carries a significant social stigma with them, and that may ultimately affect the employer’s decision to hire you or not.

Additionally, if convicted of prostitution or solicitation, the punishments will be enhanced to a felony if you are convicted a second time for either offense. As such, it is important to beat the charges against you. The best way to accomplish that is to contact Los Angeles Criminal Lawyer immediately after you have been arrested for the offense. Contacting an attorney has substantial benefits to the accused.

By contacting LACL immediately after you have been arrested, you will be able to provide them with a detailed account of all the events leading up to your arrest. It is imperative that your attorney have all the facts, no matter how minute they seem, and communicating with them early on in the process ensures that the information will still be fresh in your mind. Many cases are won and lost based on the smallest details.

Armed with all of the information, LACL will hand craft a defense unique to you, and approach the District Attorney in an effort to persuade them to dismiss the charges against you, or reduce the charges against you. This is not always successful, but the stronger the argument your attorney is able to present to the district Attorney, the more likely they are to succeed. The strength of your attorney’s argument is dependent on the amount of information they have.

In most cases, the case will proceed to trial. Having substantial time to prepare your case for trial will provide your attorney with a significant advantage over the Prosecution. The attorneys at LACL have decades of experience trying cases in front of juries, and have developed and perfected techniques designed to persuade the jury of your innocence. Some of the defenses your LACL attorney may raise include:

  • Lack of an act evidencing an agreement to engage in prostitution
  • The Defendant was falsely accused
  • The Defendant was not the person who solicited or engaged in prostitution
  • The Defendant never truly solicited the act
  • Entrapment
  • Insufficient evidence
  • Illegally obtained evidence
  • There was no sexual intercourse
  • There was no lewd act

If you or a loved one has been accused of prostitution or solicitation, contact Los Angeles Criminal Lawyer today at 310-502-1314 for a FREE consultation.


i This is often referred to as the “mens reas” component of the crime.

ii Distinguish Assault with a Caustic Chemical or Flammable Substance (Link to “Assault with a Caustic Chemical or Flammable Substance” page) and “simple assault”

iii California Crim. Jury Instr. Companion Handbook § 5:1, California Crim. Jury Instr. Companion Handbook § 5:1

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