California’s Penal Code 647(b) defines prostitution as: engaging in a sexual act in exchange for money or other consideration, and makes it a misdemeanor for anyone 18 or older to:
- Pay or accept money or other consideration in exchange for a sexual act (“prostitution”);
- Offer to engage in an act of prostitution (“solicitation”);
- Agree to engage in an act of prostitution;
It is important to mention that all people involved in facilitating the crime can be arrested and face prostitution charges. This includes the supposed prostitute, customer, and any other person that knowingly facilitates the encounter.
Some prostitutes also have middlemen, known generally as “pimps.” Pimps are more likely to be arrested for violating:
- California’s “pimping and pandering” laws, Penal Code 266h and 266i, or
- “Supervising or aiding” a prostitute, Penal Code 653.23
Engaging in an Act of Prostitution Means
- The defendant willfully intended to engage in a sexual contact or a lewd act with another person; and
- In exchange for money or other consideration (these can be anything of value, including drugs, stolen merchandise, forged money, important documents). It is not necessary to make compensation directly to the person providing sexual favors. Actually, a promise to give anything of value, even in the future, is sufficient “consideration” as that term is used in PC 647(b).
Soliciting Prostitution Means
- The defendant communicated by words or conduct, an offer or a request, to another person to commit an act of prostitution;
- The defendant had clear intent of committing an act of prostitution, it does not matter if the prostitute actually agrees to engage in prostitution, or that any lewd act actually occurred.
Agreeing to Engage in an Act of Prostitution Means
- The defendant accepted an offer for sexual services and agreed to engage in an act of prostitution with another person for money or other benefit;
- The defendant specifically intended to engage in an act of prostitution with that person;
- In addition to agreeing, the defendant performed some act to further the commission of an act of prostitution. It means that the defendant did something after agreeing to commit prostitution that helps interpret the meaning of the agreement.
Defenses to California Prostitution Charge
Entrapment is when a government agency originates the idea of the illegal act, persuades a person to commit a crime and then allows a crime to happen. A person is not considered guilty of a crime if he was coerced or harassed to commit a crime that he was not predisposed to commit. In California’s law system entrapment is considered an affirmative defense, so the defendant has the burden of proving in case he or she was entrapped.
Lack of Evidence is a common defense under California Penal Code 647(b). In many cases prosecution lacks substantial evidence to prove that the defendant committed a crime punishable by conviction.
Misunderstanding: While the defendant may have performed sexual activity but did not have the specific intent to engage in prostitution, he or she cannot be convicted under section 647.
Penalties for Prostitution or Solicitation in California Penal Code 647(b)
Engagements in prostitution, soliciting prostitution or agreement to engage in prostitution are considered misdemeanors under California Penal Code section 647(b).
Penalties for First Offense Conviction for Prostitution Can Include:
- Up to six months in county jail, and/or
- A fine of up to one thousand dollars
Usually the court places a defendant on a period of probation and orders to perform community service. Moreover, in all prostitution cases, the court orders the defendant to obtain an HIV test.
Subsequent convictions: According to Penal Code 647(b) prostitution is a “priorable” offense, meaning that punishment for prostitution/solicitation increases with each subsequent conviction:
For second offense a court may sentence mandatory minimum a minimum of 45 days in county jail, and a minimum of 90 days for third or subsequent offense:
Additional penalty if committed in a car
If the offense was committed while using an automobile and within 1,000 feet of a residence, the defendant can face additional penalty:
- A suspended driver’s license for up to 30 days
- A restricted driver’s license for up to 6 months (one may still drive, but only to and from work or school)
There are a few legal defenses to penal code section 273.5 and are as follows:
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