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To many people, prostitution is a victimless crime. Both parties are usually willing adult participants and are aware of the nature and consequences of performing sexual acts with each other. What makes the act illegal is that money is exchanged in return for the sex act.
California Penal Code 647 is as follows:
647. Except as provided in subdivision (l), every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor:
(a) Who solicits anyone to engage in or who engages in lewd or dissolute conduct in any public place or in any place open to the public or exposed to public view.
(b) Who solicits or who agrees to engage in or who engages in any act of prostitution. A person agrees to engage in an act of prostitution when, with specific intent to so engage, he or she manifests an acceptance of an offer or solicitation to so engage, regardless of whether the offer or solicitation was made by a person who also possessed the specific intent to engage in prostitution. No agreement to engage in an act of prostitution shall constitute a violation of this subdivision unless some act, in addition to the agreement, is done within this state in furtherance of the commission of an act of prostitution by the person agreeing to engage in that act. As used in this subdivision, "prostitution" includes any lewd act between persons for money or other consideration.
(c) Who accosts other persons in any public place or in any place open to the public for the purpose of begging or soliciting alms.
(d) Who loiters in or about any toilet open to the public for the purpose of engaging in or soliciting any lewd or lascivious or any unlawful act.
(e) Who lodges in any building, structure, vehicle, or place, whether public or private, without the permission of the owner or person entitled to the possession or in control of it.
(f) Who is found in any public place under the influence of intoxicating liquor, any drug, controlled substance, toluene, or any combination of any intoxicating liquor, drug, controlled substance, or toluene, in a condition that he or she is unable to exercise care for his or her own safety or the safety of others, or by reason of his or her being under the influence of intoxicating liquor, any drug, controlled substance, toluene, or any combination of any intoxicating liquor, drug, or toluene, interferes with or obstructs or prevents the free use of any street, sidewalk, or other public way.
(g) When a person has violated subdivision (f), a peace officer, if he or she is reasonably able to do so, shall place the person, or cause him or her to be placed, in civil protective custody. The person shall be taken to a facility, designated pursuant to Section 5170 of the Welfare and Institutions Code, for the 72-hour treatment and evaluation of inebriates. A peace officer may place a person in civil protective custody with that kind and DEGREE of force which would be lawful were he or she effecting an arrest for a misdemeanor without a warrant. A person who has been placed in civil protective custody shall not thereafter be subject to any criminal prosecution or juvenile court proceeding based on the facts giving rise to this placement. This subdivision shall not apply to the following persons:
(1) Any person who is under the influence of any drug, or under the combined influence of intoxicating liquor and any drug.
(2) Any person who a peace officer has probable cause to believe has committed any felony, or who has committedany misdemeanor in addition to subdivision (f).
(3) Any person who a peace officer in good faith believes will attempt escape or will be unreasonably difficult for medical personnel to control.
(h) Who loiters, prowls, or wanders upon the private property of another, at any time, without visible or lawful business with the owner or occupant. As used in this subdivision, "loiter" means to delay or linger without a lawful purpose for being on the property and for the purpose of committing a crime as opportunity may be discovered.
(i) Who, while loitering, prowling, or wandering upon the private property of another, at any time, peeks in the door or window of any inhabited building or structure, without visible or lawful business with the owner or occupant.
(j) (1) Any person who looks through a hole or opening, into, or otherwise views, by means of any instrumentality, including, but not limited to, a periscope, telescope, binoculars, camera, motion picture camera, camcorder, or mobile phone, the interior of a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which the occupant has a reasonable expectation of privacy, with the intent to invade the privacy of a person or persons inside. This subdivision shall not apply to those areas of a private business used to count currency or other negotiable instruments.
(2) Any person who uses a concealed camcorder, motion picture camera, or photographic camera of any type, to secretly videotape, film, photograph, or record by electronic means, another, identifiable person under or through the clothing being worn by that other person, for the purpose of viewing the body of, or the undergarments worn by, that other person, without the consent or knowledge of that other person, with the intent to arouse, appeal to, or gratify the lust, passions, or sexual desires of that person and invade the privacy of that other person, under circumstances in which the other person has a reasonable expectation of privacy.
(3) (A) Any person who uses a concealed camcorder, motion picture camera, or photographic camera of any type, to secretly videotape, film, photograph, or record by electronic means, another, identifiable person who may be in a state of full or partial undress, for the purpose of viewing the body of, or the undergarments worn by, that other person, without the consent or knowledge of that other person, in the interior of a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which that other person has a reasonable expectation of privacy, with the intent to invade the privacy of that other person.
(B) Neither of the following is a defense to the crime specified in this paragraph:
(i) The defendant was a cohabitant, landlord, tenant, cotenant, employer, employee, or business partner or associate of the victim, or an agent of any of these.
(ii) The victim was not in a state of full or partial undress.
(4) (A) Any person who photographs or records by any means the image of the intimate body part or parts of another identifiable person, under circumstances where the parties agree or understand that the image shall remain private, and the person subsequently distributes the image taken, with the intent to cause serious emotional distress, and the depicted person suffers serious emotional distress.
(B) As used in this paragraph, intimate body part means any portion of the genitals, and in the case of a female, also includes any portion of the breasts below the top of the areola, that is either uncovered or visible through less than fully opaque clothing.
(C) Nothing in this subdivision precludes punishment under any section of law providing for greater punishment.
(k) In any accusatory pleading charging a violation of subdivision (b), if the defendant has been once previously convicted of a violation of that subdivision, the previous conviction shall be charged in the accusatory pleading. If the previous conviction is found to be true by the jury, upon a jury trial, or by the court, upon a court trial, or is admitted by the defendant, the defendant shall be imprisoned in a county jail for a period of not less than 45 days and shall not be eligible for release upon completion of sentence, on probation, on parole, on work furlough or work release, or on any other basis until he or she has served a period of not less than 45 days in a county jail. In all cases in which probation is granted, the court shall require as a condition thereof that the person be confined in a county jail for at least 45 days. 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.
In any accusatory pleading charging a violation of subdivision (b), if the defendant has been previously convicted two or more times of a violation of that subdivision, each of these previous convictions shall be charged in the accusatory pleading. If two or more of these previous convictions are found to be true by the jury, upon a jury trial, or by the court, upon a court trial, or are admitted by the defendant, the defendant shall be imprisoned in a county jail for a period of not less than 90 days and shall not be eligible for release upon completion of sentence, on probation, on parole, on work furlough or work release, or on any other basis until he or she has served a period of not less than 90 days in a county jail. In all cases in which probation is granted, the court shall require as a condition thereof that the person be confined in a county jail for at least 90 days. In no event does the court have the power to absolve a person who violates this subdivision from the obligation of spending at least 90 days in confinement in a county jail.
In addition to any punishment prescribed by this section, a court may suspend, for not more than 30 days, the privilege of the person to operate a motor vehicle pursuant to Section 13201.5 of the Vehicle Code for any violation of subdivision (b) that was committed within 1,000 feet of a private residence and with the use of a vehicle. In lieu of the suspension, the court may order a person's privilege to operate a motor vehicle restricted, for not more than six months, to necessary travel to and from the person's place of employment or education. If driving a motor vehicle is necessary to perform the duties of the person's employment, the court may also allow the person to drive in that person's scope of employment.
(l) (1) A second or subsequent violation of subdivision (j) is punishable by imprisonment in a county jail not exceeding one year, or by a fine not exceeding two thousand dollars ($2,000), or by both that fine and imprisonment.
(2) If the victim of a violation of subdivision (j) was a minor at the time of the offense, the violation is punishable by imprisonment in a county jail not exceeding one year, or by a fine not exceeding two thousand dollars ($2,000), or by both that fine and imprisonment.
Elements of Prostitution
Under PC 647(b), prostitution is:
- Willfully engaging in the act, and
- Offering or agreeing (soliciting) to engage in prostitution
Under this law, the prostitute or the willing partner (“john”) can be arrested and charged. You can be charged with engaging in prostitution by offering someone money or something of value in return for a sexual act, allowing someone to commit a sexual act on you for money, or by accepting a woman’s offer to have sex in return for money.
There is often a middleman who may or may not be seen in the transaction. The “pimp” is a person who arranges or participates in the solicitation, procures the prostitute or who takes a portion or all of the money earned by the prostitute. A pimp is usually charged with pandering, found under California Penal Code 266(h) and (i).
The sexual act need not be only sexual intercourse. Any lewd act qualifies, which includes merely touching the genitals, buttocks, or female breast of another with the specific intent to arouse or gratify someone sexually.
The offense of engaging in prostitution is charged as a misdemeanor.
Soliciting means that you lured or enticed someone, or attempted to do so, to engage in act of prostitution and had the specific intent to do so. To demonstrate specific intent, the prosecution has to show more than that you were in a place where prostitutes are present or that you were observed talking to them, or that you were hanging out on a street corner provocatively dressed. Intent is shown by offering money with the cash in hand or on your person or by the prostitute accepting it or giving a price for a lewd act.
Agreeing to Engage in Prostitution
To be charged and convicted of agreeing to engage in prostitution, you must have demonstrated the following:
- You agreed to engage in an act of prostitution
- You had the specific intent to commit the act
- You performed an act in furtherance of prostitution
This crime is committed by the “john” or the target of the prostitute who accepts the offer of prostitution and who engages in the act. This includes not only handing over the money but going to a bank or ATM and withdrawing the cash, or driving or walking to an agreed destination to commit the act.
A prostitute can be charged with agreeing to engage in prostitution by words. By telling the customer to take his pants off after agreeing to the transaction, she has committed the offense. The conduct is a corroboration of the intent to engage in prostitution.
Other evidence evincing your intent to engage in prostitution is if law enforcement finds that you possessed a large number of condoms, large quantities of cash or your mode of dress. This factors alone, however, are insufficient to prove specific intent.
Entrapment is a common defense in engaging in prostitution charges. An overly aggressive undercover police officer who pressure, threats or even flattery to lure you or to entice you to commit a crime that you would otherwise not have intended to commit can be entrapment.
Usually, this defense is used when an element of the charge cannot be proved, such as an act in furtherance of prostitution or there was no specific intent to commit a lewd act. Sometimes a fraternity initiation will require a pledge to engage a prostitute but with no intent to go through with it. In other cases, it is unclear if an offer was made or what the offer was supposed to accomplish.
Further, unless the person is wired for sound, law enforcement generally cannot prove that any clear transaction for sex took place.
Penalties for Engaging in Prostitution
This offense, along with solicitation and prostitution are all misdemeanors and carry the following penalties:
- Up to 180 days in the county jail, and/or
- A fine up to $1,000
You face a minimum of 45 days in jail for a second offense and 90 days for a third and/or a fine up to $2,000.
If you used a car in commission of the offense and were within 1000 feet of a residence, the court can suspend your driver’s license for up to 6 months, or issue you a restricted license for driving to and from work or school for 6 months.
In some California municipalities, you risk seizure of your car by the government.
As a sex crime, you do face the possibility of having to register as a sex offender, but this is rarely imposed and generally requires some aggravating circumstances.
Though you may not be charged with engaging in prostitution or the prosecutor may not fee the evidence is sufficient, you may be charged with a similar offense. In many cases, your attorney can persuade the prosecutor to allow you to plead to a lesser charge such as disturbing the peace or even trespassing.
- Lewd conduct in a public place
You may be charged with PC 647(a) and 647(b) if there is little or no evidence of an actual agreement to engage in prostitution or the offense took place in a vehicle. If the alleged act took place in a private location or where no one else was around, it may be difficult to prove you were in a public place.
- Loitering to commit prostitution
Alleged prostitutes who dress the part, are on the street for long periods of time and are seen approaching cars and talking to occupants at their car windows can be charged under PC 653.22.
Intending to direct public attention to your genitals comes under PC 314. You would probably have to be seen with your trousers and underwear down in a public place.
Consult with a California Criminal Defense Attorney
Any criminal conviction can lead to substantial impediments in your daily life, including finding employment, housing, credit, enrolling in school or pursuing a professional license. An engaging in prostitution conviction can also be an embarrassment to your family and co-workers. Consult promptly with a California criminal defense lawyer if you are charged with engaging in prostitution.