Solicitation of Prostitution
UPDATED: June 19, 2018
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Solicitation of prostitution is technically the request to one person by another to perform a sexual act in exchange for a fee. However, an actual solicitation of prostitution charge usually encompasses a wider set of circumstances with harsher penalties and punishments than the basic charge. A person charged with solicitation of prostitution should understand the nature of these charges, the defenses, and all of the possible punishments before deciding how to resolve their case.
Solicitation of prostitution does not require a completed act of sexual conduct. The mere agreement or offer to complete a sexual act in exchange for a fee (i.e. money) is enough to support a solicitation charge. This also means that both parties to the agreement—the person offering a sexual service and the person accepting the service, can be charged with prostitution. This is the most basic type of solicitation charge. However, solicitation charges can encompass a broader type of conduct.
If a person is involved in the negotiations described above, they can be charged as a party to the offense of solicitation of prostitution. Most people commonly think of the third person involved as the “Madame” or “pimp.” The third person can be anyone, though that helps with the solicitation. This third person or “promoter” usually faces a stiffer penalty range than the original two actors to the agreement.
Defenses to Solicitation of Prostitution Charges
For a basic solicitation charge, the defenses are usually focused on whether or not an agreement actually existed. Essentially the defense is that the two people were discussing having a sexual encounter, but the encounter was not contingent of the exchange of a fee. Another defense is to simply counter that the solicitation was not for sexual relations, but rather a “flirtation.” This defense strives to refute the intent and fee requirements of a basic solicitation of prostitution charge.
The reasons a person was offering sexual conduct in exchange for a fee may also constitute a defense. If a person was compelled by force or threats by another person, such as a pimp, then they might successfully prevent the prosecution from making a case that they intended to to offer sex in exchange for a fee by proving coercion by this third party. Other possible defenses vary by state statues, but some states will specifically cut off certain defenses. The first defense that many people point to is that a sexual act was never completed, just offered. Because solicitation punishes the mere asking, the fact that a sexual act was not completed will not be a viable defense.
The second applies to sting operations and the use of decoy prostitutes or clients. These can involve undercover officers posing in either capacity. The common defense is that because the other person never actually intended to enter the agreement since they were an officer, the defendant should then have the defense of impossibility or entrapment. Both have been consistently rejected as available defenses in most states because, again, solicitation only requires a defendant to ask the question, not complete the act of prostitution.
Solicitation of Prostitution Penalties and Punishment
The basic charge of solicitation of prostitution (someone asking, someone accepting) is usually punished as a misdemeanor offense. A misdemeanor offense can include a range of punishment from probation up to a year or two in a county or parish jail. Some court systems have been concerned about the connection between prostitution and drug use and have since created diversion courts for those individuals charged with prostitution. The defendant is required to report to the court and participate in rehabilitative and life skill type courses. If the person completes the program, then the court will dismiss the solicitation charges outright. This is not offered in all states or counties, but is a very enticing program for a defendant where available. If a defendant is placed on probation, conditions of probation can include counseling, life skill courses, and rehab.
Even though solicitation of prostitution defendants are not usually required to register as sex offenders, some counties have begun posting pictures of persons arrested or convicted of solicitation on the Internet as an added embarrassment and deterrence. If a person is arrested and convicted multiple times for solicitation of prostitution, then the level of punishment can increase to a higher level misdemeanor and eventually to a felony level offense. Other factors can aggravate the punishment range even higher.
Solicitation of Child Prostitution
States are starting to crack down on child prostitution. If a defendant offers a child a fee in exchange for performing a sexual act, this solicitation of prostitution of a child charge can result in a felony charge. The punishment range for this type of charge is probation up to ten plus years in prison. A defendant could also be required to register as a sex offender. If someone was charged as a third party (i.e. the pimp) and it was proven that they were managing or directing multiple children or other individuals, then the charge could increase to a felony level offense.
In addition to a solicitation of prostitution charge, the third party could also be charged with a felony “human trafficking” charge. Some states have changed their definitions of forced labor services to include services obtained through fraud—not just coercion or physical force. This means if someone drives or recruits someone to serve as a prostitute based on a fake promise, they could face additional felony charges. This change was motivated in part to address the issue of illegal immigrants being defrauded or tricked into the prostitution industry.