Nearly every state in the nation makes solicitation of prostitution illegal—the lone exception being certain areas of Nevada. Some state laws use different terms for this offense or charge it as another crime. For instance, California charges this crime under its disorderly conduct statute. Federal law mostly leaves prosecution of prostitution-related crimes up to the states with few exceptions.
This article focuses on the crime of solicitation of prostitution within the states, including its penalties and possible defenses.
Solicitation of prostitution occurs when a person uses words, actions, or any type of conduct in an attempt to engage in an act of prostitution. Solicitation encompasses two different types of illegal behavior. A prostitute who advertises their availability to perform sexual acts for compensation commits the unlawful act of solicitation, as does a potential patron offering to pay for sex.
Oftentimes, the offer and the act are thought of as prostitution but they actually comprise two separate crimes. The offer and agreement to exchange money (or other items of value) for sexual acts constitute solicitation of prostitution, whether or not the sexual activity occurs. The individual who pays (the customer or buyer) for the act is often referred to as a patron or "john."
Let's examine these two types of solicitation more closely.
Solicitation by a prostitute occurs when a person offers or agrees to perform sexual acts with another person in exchange for compensation. Courts have held that a prosecutor does not have to show that a specific offer to engage in prostitution occurred. It's enough, for example, for a person to list prices for different acts or for the prostitute and recipient to negotiate a price.
In addition to the offer, solicitation of prostitution requires a specific intent. In order to convict an offender, the prosecution must show the defendant made a serious attempt to engage in prostitution. If a person makes an offer as a joke or without any intent to ever follow through with providing sexual acts, no crime occurred. The circumstances surrounding the case help to prove the required specific intent.
A patron (the customer or buyer) of unlawful sexual acts can also face charges of solicitation of prostitution. Here, too, the prosecution must establish specific intent and an offer. A person commits this crime by offering to pay for sexual services. The offer need not be a specific offer to engage in prostitution. Rather two people negotiating a price is sufficient to show an offer exists.
The prosecutor must also show that the offender made a serious attempt to engage in prostitution by offering money in exchange for sexual favors. If a buyer jokingly said they would pay for sex without any intention of following through with that, no specific intent can be proven. An offer to pay cash for sexual acts is typically enough to prove solicitation.
The crime of solicitation by a buyer also constitutes a misdemeanor, subjecting a guilty defendant to up to one year of incarceration and a fine.
Solicitation of prostitution requires intent and an offer. This usually involves some agreement and an act in furtherance of such agreement. A person standing on the street, who perhaps is known to be a prostitute, can't be arrested by merely standing there. If that person happens to be an undercover cop and a willing patron comes over and agrees to pay for services, the would-be patron can be arrested despite the fact the offer was one-sided.
Some states have stopped arresting and punishing juveniles under a certain age for solicitation of prostitution. These statutes are known as "safe harbor laws." Under safe harbor laws, the state considers the juvenile to be a victim of sex trafficking or a child in need of protection or services, not a prostitute. For example, in North Carolina, if investigators determine one of the parties involved is a minor, the individual becomes immune to prosecution. Instead, they take the child into temporary protective custody and contact the department of social services.
Most states charge solicitation as a misdemeanor. Some, however, make it a felony, even for first-time offenders. Texas, for example, makes a first-offense solicitation for prostitution a state jail felony, which carries up to two years in jail and a $10,000 fine.
Other states charge solicitation as a felony when aggravating circumstances are involved, such as when a defendant solicits a minor, has similar prior convictions, or has HIV or an STD and deliberately hides that information from the other person. For example, Ohio law makes it a third-degree felony to engage in solicitation of prostitution after testing positive for HIV. Such an offense subjects a defendant to up to five years in prison and a $10,000 fine. In North Carolina, a person who solicits a minor (younger than 18) commits a class G felony, punishable by 8 to 31 months in prison.
Defendants facing solicitation of prostitution charges under state law have several defense strategies available to them. At the same time, the law prohibits or limits the use of certain defenses.
Actual innocence. Defendants charged with a solicitation of prostitution crime have the usual defenses available to all criminal defendants, such as "Someone else committed this crime," or "The alleged conduct did not occur."
Lack of intent. Solicitation of prostitution is a specific intent crime. If the parties did not have the specific intent to engage in sexual activity in exchange for compensation, they did commit this crime.
Lack of sexual conduct; no defense. Lack of sexual activity does not constitute a defense. Solicitation only requires intent and an offer. The fact that the players involved never got around to engaging in sexual behavior will not prevent a charge of solicitation. Defendants often attempt to use this defense in cases where the prostitute turns out to be an undercover cop.
Mistake of age; no defense. Mistake of age is not a defense. If a customer believed the prostitute was 18 or older, when in fact they were a minor, the offender can still face charges for solicitation of a minor. Furthermore, if the defendant believed the individual was a minor and solicited them for sex, in some states, they can be charged for solicitation of a minor, even if the person turns out to be 18. In the latter circumstance, the offender gets charged based on their belief.
If you're facing a charge for solicitation of prostitution or a related offense, contact an experienced criminal defense attorney in your area . A lawyer can evaluate the strength of the prosecution's case against you and help develop any defenses that might apply.
(Cal. Penal Code § 647; N.C. Gen. Stat. § 14-205.1; Ohio Rev. Code § 2907.24; Tex. Penal Code § 43.021 (2022).)