Pursuant to California Penal Code §647(b), it is illegal to offer or solicit another person to have sexual relations in exchange for money, goods, or anything else of value. If convicted, this could lead to imprisonment, and heavy fines. To put it plainly, anyone who agrees to have sex in exchange for goods, money or anything of value, can be charged with prostitution. Alternatively, anyone who attempts to convince another to have sexual relations in exchange for goods, money, or anything of value, can be charged with solicitation. This statutory scheme is designed to create a punishable offense for prostitutes, customers (“Johns”), and pimps. To be charged under §647(b), the person being charged must have done an act, which shows that they accept the bargain of sexual relations in exchange for something of value, money, or goods.
- John approached Julia, who was standing by a dimly lit bus stop. John asked Julia if she would have sex with him in exchange for $200. If Julia agrees, she may be charged with prostitution, and John may be charged with solicitation.
- John approached Julia at a local bar, and suggested they have sex if he bought her a drink. Unbeknownst to John, Julia was an undercover police officer.
- A homeless man, in desperate need of crack, approached another man at the local trolley stop. He suggested that the man give him money in exchange for oral sex. Once the man pulls out his money, he can be charged under this statute.
Pursuant To California Penal Code §647(B), The Prosecution Must Prove Two Elements Beyond A Reasonable Doubt
- The person being charged was engaged in the act of prostitution; and
- The person accused of prostitution acted willfully.
- Since the Prosecution must prove every element beyond a reasonable doubt, it is important to understand each element of this charge. The attorneys at Orange County Criminal Attorney have extensive experience representing clients charged will all manners of criminal defenses; including prostitution or solicitation. With their experience, OCCA attorneys can provide you the best opportunity of “beating the charges” and walking free. A discussion of the elements of prostitution or solicitation will follow below.
What Does It Mean To “Solicit / Engage / Or Agree To Engage An Act Of Prostitution?
California law defines prostitution as engaging in any lewd act, including sexual acts, with another person in exchange for goods, money, or anything else of value. To extrapolate, “engaged in an act of prostitution” means any type of conduct where an individual agrees, commands, controls, or offers prostitution. This means that any person that aids, helps, or asks for sexual intercourse or other lewd acts in exchange for goods, money, or anything of value could be convicted of prostitution or solicitation. In order to figure out if this element has been satisfied, the statement of the prostitute or solicitor must be unambiguous, and unequivocal, in making clear that the agreement of prostitution will happen, and steps are taken to complete that act. Kim v. Superior Court (2006) 136 C.A.4th 937, 945, 39 C.R.3d 338. This is a very difficult element for the Prosecution to prove beyond a reasonable doubt, and is often the element defense attorneys attack. What makes this so difficult is that there must be more than just accepting the offer of prostitution; steps must be taken indicating that they intend to go through with the act.
What Is Sexual Intercourse?
California law defines “sexual intercourse” as contact between individuals, which involves penetration into an organ; mouth, anus, vagina. It does not matter how slight the penetration is, and orgasm is unnecessary to complete this crime.
What Is A Lewd Act
California law further defines a “lewd act” as the touching of genetalia, buttocks, or breasts of either the “John” or the prostitute for the purpose of sexual arousal or gratification of either person.
Notwithstanding all of this, the key component of the crime is the acceptance. As such, you can be charged, and convicted, under this statute simply by agreeing to pay for sex or lewd conduct, as long as some action was taken to suggest the act would occur.
What Is Soliciting?
As explained above, this statute also covers men and women who solicit prostitution. Solicit means attempting to induce someone to engage in an act of prostitution, or attempting to lure them into performing an act of prostitution. As such, a man, or woman, who suggests that another engage in conduct, which constitutes position, may be charged with solicitation. It should be noted, that the person being solicited, may be charged with prostitution if they agree to the solicitation, and take acts suggesting it will happen.
What Does It Mean To Willfully Act?
The last element the Prosecution must prove beyond a reasonable doubt is that the Defendant acted willfully. A person acts willfully, where they manifest intent to do the act. This is so even if there is no intent to hurt someone, or gain some advantage. "A person is not guilty of prostitution unless he or she seriously intends to carry through by performing an act of prostitution. A mere speaking of the words of solicitation is not enough for conviction of this offense." People v. Love (1980) 111 C.A.3d Supp. 1, 13, 168 C.R. 591.
What Are The Penalties For Prostitution Or Solicitation?
Generally speaking, California law treats prostitution and solicitation as a misdemeanor; provided there are no aggravating circumstances. §647(b) provides that a person convicted under this section will be subject to incarceration up to six (6) months, a fine of up to one-thousand ($1,000) dollars, or a combination of both.
The Case Will Morph Into A Felony, Carrying Much Stiffer Penalties If Any Of The Following Is Proven Beyond A Reasonable Doubt:
- If the Defendant has one prior conviction of prostitution or solicitation, they must serve a minimum of forty-five (45) days in jail; this time must be completely served.
Pursuant to Penal Code §617, an individual with two or more prior convictions for prostitution or solicitation must serve no less than ninety (90) days in jail; this time must be served to completion.
- Prior Conviction and Positive Blood Test for AIDS.
Pursuant to California Penal Code §1202.1, 1201.1(d), and 1202.6, if a blood test for AIDS subsequent to arrest under this statute (which is required pursuant to §1202.1(d), and a blood test for AIDS pursuant to §1202.1 and 1202.6, when there is a prior conviction, for AIDS yields a positive result (which the Defendant was informed of after their prior conviction)
- Pursuant to California Penal Code §647, if the violation occurred by virtue of using an automobile within one-thousand (1,000) feet of a residential home, the Court may suspend the Defendant’s driver’s license for no more than thirty (3) days, in addition to the other penalties associated with the crime. However, if driving is necessary for the Defendant’s employment, the Court may allow the Defendant to drive within the scope of their employment.
- Pursuant to California Penal Code §647, and 647.1, the judge may impose a fine of not more than $70 for the purpose of forcing the Defendant to obtain education about Auto-Immune Deficiency Syndrome (AIDS).
- Enhanced Punishment for Child Prostitution. On top of any, and all, other authorized punishment, or enhancement, if an individual is also convicted of unlawful sexual intercourse P.C. 261.5(c) or (d), anal sex pursuant to P.C. 286(b)(1), (b)(2), or (c)(1), lewd or lascivious act as defined by P.C. 288(a) or (c)(1), or oral copulation as defined by P.C. 288a(b)(1), (b)(2), or (c)(1), involving a minor for goods, money, or other things of value, is punishable by an enhanced sentence of one (1) year incarceration (P.C. 675; see 3 Cal. Crim. Law (4th), Punishment, § 371.)
In addition to all other penalties imposed on a Defendant who sought to engage in, or did engage in, sexual acts with a prostitute under the age of 18 in violation of §647(b) must be fined up to, but not exceeding, twenty-five thousand ($25,000) dollars. Witkin California Criminal Law, Fourth Edition Sex Offenses and Crimes Against Decency.
What Are The Legal Defenses My Defense Attorney Can Make If I Am Charged With Prostitution Or Solicitation?
As mentioned above, Prostitution and solicitation is generally treated as a misdemeanor under California law. However even as a misdemeanor, a conviction of this nature can cause significant harm to your livelihood and reputation. A conviction will remain on your criminal background. In recent years, virtually every potential employer conducts what is known as a background check on their potential hires. This is an effort to sift through all the candidates and find the best person for the job. Frequently, employers view prior convictions as an indication that a potential employee is unfit for the job. It is a common response from employers, when queried about why a job was not offered, to inform the individual that their background check revealed a criminal background; prostitution has a very negative connotation. If you have been charged with prostitution, or solicitation, it is critical that you contact an attorney from Orange County Criminal Attorney immediately. Having competent counsel on your side can mean the difference between walking free and having a painful conviction following you around for the rest of your life. Having an attorney from start to finish will allow your attorney to build the strongest defense possible for your case, negotiate a plea deal with the Prosecution, or any number of other options to keep a conviction of this nature from haunting you for the rest of your life. Your defense attorney can raise a number of defenses including: There was never an agreement
- There no action to suggest that the agreement would happen.
- False accusation.
- Mistaken identity.
- Lack of solicitation.
- Insufficient evidence.