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In California, prostitution is covered in Penal Code Section 647(b) and can simply be defined as engaging in a sexual act for money or other goods and services. In California it is legal for the police to arrest the prostitute, the customer or “john”, and, when appropriate, the pimp. A pimp can only be arrested if they violate California Penal Code 266(h) and/or 266(i). Under these penal code sections, they must arrange or participate in the soliciting of the agreement, receive all or a portion of the prostitutes pay, and participate in procuring the prostitute. Many times, individuals are arrested during prostitution sting operations being conducted by law enforcement.
The Legal Elements of Prostitution
In order to be found guilty of engaging in an act of prostitution the prosecutor must prove that the individual did so willfully. Prostitution essentially means engaging in a sexual act or other lewd act with another person in exchange for money or other goods. A “lewd” act is any act that involves touching the genitals, buttocks, or female breast of another person with the specific intent to arouse or sexually gratify someone.
In order to be found guilty of soliciting prostitution the prosecutor must prove that the individual solicited another person to engage in an act of prostitution that they intended to engage in an act of prostitution. In this case, soliciting means to lure or to try to elicit. Some courts have required a third element, that the individual being solicited must actually receive the solicitation; more simply put that the prostitute must know that the “john” is attempting to purchase their services.
In order to be found guilty of agreeing to engage in an act of prostitution, the prosecutor must prove that the individual agreed to engage in an act of prostitution, that they did so with the intent to engage in that act and that they performed the act in furtherance of prostitution. For someone to act “in furtherance of prostitution” means that they did more than just accept the solicitation from the “john”. The timing of the act does not matter; meaning that the act in furtherance of the prostitution can take place before, after or during the agreement.
All of the acts described above are misdemeanor offenses. This means that if an individual is convicted they may face up to 6 months in jail and/or up to $1,000 in fines. These acts are considered what are known as “priorable” offenses meaning that they punishment increases with each subsequent offense. If an individual is convicted for a second time, the judge will sentence them to a minimum of 45 days in jail and if they are caught a third time that time becomes 90 days. In some cases, the judge may even order an individual to register as a sex offender.
An attorney may attempt to have the charge reduced to disturbing the peace or criminal trespassing because these charges are less damaging to an individual's criminal record than are the charges associated with prostitution. An attorney may also try to prove that it was entrapment. Entrapment occurs when a police officer is overbearing, and this behavior leads the defendant to act in a way that they otherwise wouldn't. In a sting operation, for example, if the officer portraying the prostitute lures the individual into committing an offense it could qualify as entrapment. Oftentimes, there is also an insufficient amount of evidence, a dearth of trustworthy evidence or the arrest could have been a mistake. An attorney could use any of these facts as a potential line of defense.
Some related offenses include pimping and pandering, lewd conduct in public, loitering to commit prostitution and supervising or aiding a prostitute. Pimping and pandering essentially mean a person can be charged and arrested if they take any part of a prostitute's pay or if they recruit someone to become a prostitute. These crimes are felonies and can lead to a prison sentence of 3, 4 or 6 years. Lewd conduct in public is when a person or persons participates or solicits someone else to participate in a sexual act in public. If a person helps someone else commit an act of prostitution or solicitation then they can be charged with supervising or aiding a prostitute. If a person is loitering in a public place with the intent to engage in prostitution they can be charged with a crime. These are considered misdemeanors that can come with up to 6 months in jail and a fine of up to $1,000
If you are someone you know is facing prostitution or pimping and pandering charges, call our dedicated defense team at Kenney Legal Defense today at 855-505-5588.
