April 03, 2009
/24-7PressRelease/ -- Article provided by Hinkle, Jachimowicz, Pointer & Emanuel. Please visit our Web site at
http://www.hjpelaw.com/.
In California, anyone who engages in prostitution or solicitation is charged with disorderly conduct, a misdemeanor offense. While the crime carries a lesser penalty than more serious sex crimes, there has been an increase in arrests for prostitution and solicitation in the state. Even if the legal penalty is not as severe, it can still require a jail sentence, and those who are charged with it are likely to be embarrassed and concerned about the effect the charges will have on their jobs, families and loved ones.
California's Prostitution Laws
California Penal Code §647(b) punishes those who solicit, agree to participate or actually do participate in prostitution. Prostitution is defined as any "lewd act between persons for money or other consideration." This means that something other than money may be exchanged for the sex act. You agree to participate in prostitution at the point you accept the offer or solicitation to engage in the act. This acceptance does not have to be verbal. It can be an action, such as a wink or head nod, that signifies your acceptance of the offer.
In order to be charged with prostitution, you must do more than merely agree to participate. There must be some act in addition to the agreement in furtherance of committing prostitution. For example, if the customer arrives at a designated meeting place or instructs the prostitute to remove her clothing, puts money on the table, or takes off an article of his own clothing. Money does not even have to change hands.
In the past, enforcement of prostitution laws fell more heavily on the prostitutes. Now prosecutors enforce the laws against the customers (referred to as the "johns") more often. Johns are much easier targets for law enforcement than prostitutes. It is common for police officers to run sting operations to round up prostitutes and johns such as advertise online or in smaller newspapers for erotic services, massage, etc. An undercover female officer may pose as a prostitute and propose a meeting with an unsuspecting customer. Once the customer agrees or provides other means of consent to engage in sex, the undercover officer will suggest they meet at a hotel or other place. Once the customer arrives at the hotel, he is often arrested without further agreement to perform any act.
While prostitution most commonly occurs between a male customer and female prostitute, it can occur between heterosexuals, homosexuals, male prostitutes and female customers.
Penalties
• First time offenders may have to serve time in a county jail (often 5-15 days), perform community service, attend counseling, pay fines and/or be placed on probation usually for three years.
• AIDS testing: first time offenders also are required to submit to testing for AIDS and required to participate in educational training on the causes and consequences of AIDS. If the test for the disease is positive, the offender can be charged with a felony if he or she is charged with the crime again.
• Repeat offenders will face more serious consequences, including mandatory time in a county jail. For example, those committing a second offense must spend 45 days in jail while those committing their third or more offense face 90 days or more.
• Driving restrictions: if the act occurred in a vehicle that was within 1000 feet of a private residence, the court also can suspend the offender's driver's license for up to 30 days or restrict his or her driving privileges for up to 6 months.
In San Francisco, first time offenders can participate in a diversion program in lieu of facing criminal prosecution. The First Offender Prostitution Program (FOPP) is one of these programs and seeks to educate participants on the dangers and risks of prostitution. The participants pay a fee (around $1000) for the program. The money is then used to provide job training and other services to prostitutes looking for a new life. This program is not available in most California counties, which vigorously prosecute first offenders.
The Entrapment Defense
It is possible that a person charged with prostitution or solicitation following a police sting, to claim entrapment as a defense to the charges. Entrapment occurs when the police engage in a type of conduct that would cause an ordinarily law-abiding person to commit a crime or otherwise break the law. It also can occur if a police officer tries to make the commission of a crime attractive to an otherwise law-abiding person.
Whether or not entrapment is available as a defense depends on the specific facts of each individual's case. However, California law provides the police with the ability to conduct undercover operations to ensnare johns and prostitutes. The statute provides that only one party to the agreement must have the specific intent to engage in prostitution. Thus, the other party, whether an undercover officer posing as a customer or as a prostitute, does not have to have specific intent to engage in prostitution in order for a crime to have been committed.
Thus, entrapment may not be an available defense for most people arrested for prostitution or solicitation. It really depends on what happened and what was said and done between the accused and the undercover officer.
There have been attempts in the past to legalize prostitution in certain California cities. The latest effort was in San Francisco in 2008. However, these efforts have not been successful and prostitution continues to be a crime in California.
Persons (prostitutes or johns) arrested for prostitution or solicitation should speak to a criminal defense attorney immediately to discuss the circumstances surrounding your arrest and the legal options available to you. Even if the case cannot be won at trial, there are many things to do to negotiate a plea or sentencing, reduce the charge to a lesser charge or avoid jail time.
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