I had to shorten this because the original post was too comprehensive (too long) Obviously, any discussion starts with a disclaimer. This following is not intended to be legal advice and shall not be construed as such. It is for information and purposes only. This discussion does not tell you how to avoid arrest or prosectuion, but is intended to discuss the law only. Before we begin, remember, if you are ever approached by law enforcement, make no statements. You have a right to remain silent, use it! The cop will not let you go because he/she believes your excuse. If they don't have the evidence to arrest you, they will not arrest you. If they do have the evidence to arrest you, they will not let you go. So let's begin.
WHAT IS PROSTITUTION?
In California, the act (or art) of prostitution is a violation of Penal Code Section 647(b). Specifically, this statute makes it unlawful to (1) solicit any act of prostitution or (2) to agree to engage in any act of prostitution. An act of prostitution is defined as "any lewd act between persons for money or other consideration."
SOLICITATION
Lets start with the first step "solicitation." Solicitation is an affirmative act, either verbal or nonverbal. In common street parlance, it is simply asking someone to engage in sexual services for money or other consideration (compensation). A person who solicits, whether male or female; hobbist or provider, is in violation of the law. Yes, words alone are enough for solicitation.
A common example that I tell people is this: If a cop calls on the phone and asks the provider whether she will have sex with him for $500. It is the cop who is soliciting, not the provider. So the provider has not violated Penal Code 647(b)'s prohibition on solicitation. However, if the cop calls and asks her if she provides a body to body massage and the provider says "why yes, and for an extra $200, i'll throw in full service", well, the provider has just stepped dangerously close to the definition of solicitation. Her only argument, which is a not the best one, is that the term "full service" means something other than sex.
AGREEMENT TO ENGAGE
This is the most complicated aspect of prostitution and the one that most providers and hobbyist know very little about. But it is the one that gets most prostitutes and their hobbyists busted.
Some basic premises. (1) If it not illegal to make an agreement to engage in prostitution, unless you are soliciting (see above). In California, you must go further than just agreeing. In other words, there must be an agreement (the specific intent to engage in the lewd act) plus an act in furtherence of the agreement. What constitutes "an acti in furtherence" well, that's the $65,000 question and is the difference between being arrested or set free with a stern warning.
Again, let me give you an example, by the way, these examples are from actual cases, Police officer walks into the motel room after having called provider he found on the internet. He asks her how much for sex and she says $300. He takes out $300 crisp one hundred dollar bills and attempts to hand them to her. She says to put in on the desk. He does and proceeds to undress to boxer shorts. She undresses as well, reaches into a drawer and pulls out a condom. He excuses himself to go to the bathroom, and opens the front door where she is promptly arrested by three plain-clothes police officers.
So let's look at the analysis. First, there is no solicitation on her part because she did not ask him if he wanted sex for money. So the only case they could possibly make against her is "Agreement plus act in furtherence." Now is where the fun begins because it is up to a jury to decide whether she agreed to have sex for money which clearly she did. The next issue of fact (for the jury) is whether there was an act in furtherence of the agreement for sex for money. The prosecutor will argue that the provider's direction to put the money on the table was an act in furtherence. In addition, they will argue that taking the condom out of the drawer was an act in furtherence. While taking out a condom is not per se an act in furtherence, it is a hard obstacle to get around. Other things that prosecutors argue are "acts in furtherence" include, meeting at a prearranged location, touching police officer's genitals, asking police officer to touch provider's genitals, and the presence of lubricants, other than massage oil. My all time favorite argument for act in furtherence is the phone call the provider makes when she gets to the room giving her ride/service/agency the all clear. Of course, calling your "babysitter" to tell them that you will be home in an hour is not an act in furtherence.
PENALTIES AND PLEA BARGAIN
A first offense (i.e. criminal conviction) is a misdeamor and usually only mandates probation and a fine ($300 to $1,000). Conditions of probation can include, aids testing, aids counseling, street conditions (cannot be seen in high prostitution areas). A second offense requires a 45 day minimum jail sentence. "In no event does the court have the power to absolve a person who violates this subdivision from the obligation of spending at least 45 days in confinement in a county jail." A third offense is a 90 day minimum mandatory.
If the crime was commited through the use of a vehicle (i.e., picking up prostitutes), the defendant's driver's license can be suspended.
A first time offender can commonly plea bargain the case to a violation of Penal Code Section 415 (disturbing the peace), the fine and conditions of probation are the same, but the conviction is not for an act of prostitution. An even better result is a Section 415 as an infraction (think traffic ticket) which does not appear on your permenant record. If you are really fortunate, you can get the charged reduced to trespassing or criminal mischief, both infractions as well.
Hope this helps, if you don't agree, disregard this information, it is for discussion purposes only.
-- Modified on 2/4/2003 1:39:25 PM
-- Modified on 2/4/2003 4:16:37 PM
