Prostitution sting operations targeting customers aka “Johns” are becoming increasingly commonplace in the United States. Sting operations represent a change in the focus of law enforcement from targeting prostitutes to targeting the demand for the services prostitutes offer. Law enforcement in Cook County, Texas went so far as to call a sting operation “National Day of Johns Arrest” such was the number of Johns arrested.
The shift has been by the evolving view of the social acceptability of paid for sex and in part due to the emerging data on human trafficking. Studies have revealed a staggering 20.9 million victims of trafficking worldwide. In the US 1 in 6 of endangered runaways become sex trafficking victims.1
The Commander of the Narcotics and Special investigations Division of the Metropolitan Police Department in Washington DC Inspector Brian Bray explained the shift: “When I first started, I didn’t really understand how many of these girls have been trafficked. Now our mindset has changed from assuming the girls are criminals to trying to rescue the victims, providing them the services they need, and get information to lock up their traffickers. Most of our arrests used to be female prostitutes, but now we arrest more johns that we do prostitutes.”2
Operations known as “Reverse Stings” are becoming increasingly common. In such operations law enforcement publish a fake profile on websites such as backpage.com to lure in unsuspecting customers.
Santa Barbara County is leading the way in reverse sting operations having conducted them at such a rate of almost one a month since the start of the year. Helped in part by a $1.34 million dollar funding grant from the US Department of Justice3 to assist in combatting human trafficking the Santa Barbara Sheriff’s department has arrested over 100 individuals in reverse sting operations so far this year.
Kelly Hoover of the Santa Barbara County Sheriff’s Department explained how a recent sting operation was undertaken. Santa Barbara Law enforcement posted a notice on backpage.com announcing the availability of a female willing to engage in sexual acts for money. An undercover detective then negotiated with “johns” for a sexual act for an amount of money. After the negotiation had taken place the undercover detective gave the person the location to meet for the sex act. Once the person arrived at the location the person was arrested for solicitation of prostitution.
The offence of solicitation of prostitution
The offence of the solicitation of prostitution in California is contrary to Penal Code 647(b).
To successfully prosecute a case the prosecution must prove the following:
- 1. The defendant agreed to engage in an act of prostitution with someone else;
- 2. The defendant intended to engage in an act of prostitution with that person; and
- 3. In addition to agreeing the defendant did something to further the commission of an act of prostitution
A person engages in an act of prostitution if he or she has sexual intercourse or does a lewd act with someone else in exchange for money [or other compensation]. A lewd act means touching the genitals, buttocks, or female breast of either the prostitute or customer with some part of the other person’s body for the purpose of sexual arousal or gratification.
The law requires something in addition to the acceptance of an offer or solicitation to engage in an act of prostitution. Some act must be done in furtherance of the commission of the act of prostitution.4
This begs the question: must the act in furtherance be done after the agreement to engage in an act of prostitution?
In California the Courts do not agree on this issue. In People v. Davis, 201 Cal. App. 3d Supp, 1, 4-5, 247 Cal. Rptr. 359 (App. Dep’t Super. Ct. 1988) the court held that acts in furtherance of an act of prostitution must occur after the agreement has been consummated. However, in the later case of In re Cheri T., 70 Cal. App. 4th 1400, 1405-1408, 83 Cal. Rptr 2d 397 (2d Dist. 1999) the court held that the act could precede or follow the agreement.
What sort of act in furtherance is necessary? Acts such as telling the other person to undress or instructing the other person to go to an alleyway or dark place for the act to take place have both been found by courts to be sufficient.
In sting operations undercover police officers often request that john obtains a room key and go to a certain hotel room. The john then enters the hotel room and is arrest by undercover agents. The act of obtaining the key and walking to a particular room after the agreement has been entered into is likely to be sufficient to constitute an “act in furtherance”.
What is the impact of an arrest and or a conviction for solicitation of prostitution?
There is a substantial difference between how different states and counties punish those arrested for solicitation of prostitution.
In some states in the US there are deferral programs which allow defendants to engage in “John Schools” that offer educational programs and counseling as an alternative to prosecution.
In California a violation of section 647(b) of the Penal code is punishable with up to 180 days in jail and a fine.
Counties such as Santa Barbara take a hardline approach to plea negotiation and sentencing of those who solicit prostitution. Typically, the usual sentence for a first time offence of solicitation with no aggravating factors is 3 years probation, 30 days jail time, sex counseling, HIV testing and fines.
In addition the most significant and feared potential consequence of a solicitation charge is the possibility of 290 registration i.e. registration as a sex offender. Thankfully 290 registration is a rarity in such offences.5
Unfortunately arrests are not anonymous. Law enforcement in California issue detailed press releases with booking photos and names and ages of those arrested. There is a ripple effect of such publication with press releases being sent to or picked up and published by local media outlets and Facebook groups. Arguably, the publication of booking photos, names and ages of those arrested represents a separate punishment meted out before any judicial determination or plea negotiation takes place. The upshot is even if the case is ultimately dismissed a record of the arrest will remain on the internet for all to view and is virtually impossible to remove. Undoubtedly a stigma attaches to an arrest for solicitation of prostitution. One can only imagine the impact on a potential employer plugging an applicant’s name into the internet and discovering the individual was arrested in a sting operation.
A defendant in Arlington explained the impact his arrest for solicitation of prostitution had upon him: “I’m going to have to answer for what I’ve done to anyone and everyone for the rest of my life. I wear a scarlet letter now…Its almost like you’re a sex offender, never mind what you’ve done is a misdemeanor.”6
What are the potential defenses to solicitation of prostitution?
The starting point of the assessment of any criminal case is the consideration of whether or not the prosecution can prove the constituent elements of the offence. For example if no act in furtherance of the agreement occurred this would be a defense to the charge.
Another potential defense is entrapment. This is an affirmative defense meaning the defendant must prove it by a preponderance of the evidence. Contrary to popular opinion prostitution sting operations do not per se constitute entrapment. However, the defense of entrapment is available when law enforcement or an agent induces a normally law abiding individual to commit a crime and that but for the inducement the crime would not have been committed. Put another way “ the fact that government agents ‘merely afforded opportunities or facilities for the commission of the offence does not’ constitute entrapment. Entrapment occurs only when the criminal conduct was ‘the product of the creative activity’ of law enforcement officials … to determine whether entrapment has been established, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal.”7
Some examples of entrapment may include: conduct like badgering, persuasion by ﬂattery or coaxing, repeated and insistent requests, or an appeal to friendship or sympathy. Another example of entrapment would be conduct that would make commission of the crime unusually attractive to a normally law-abiding person.8
If the defendant has committed similar prior unlawful acts evidence of these may be used by the prosecution to rebut the defense of entrapment.
Looking to the future: Should prostitution be legalized?
In the United States no law has ever succeeded in stopping prostitution. Men of all ages, ethnic backgrounds and socio-economic groups buy sex for money. With the emergence of the digital age, the accessibility of pornography, ease of finding an escort service and services catering to virtually every sexual desire its hardly surprising that prostitution is on the increase.9 Arguably the current approach is not working. Is it time to reconsider the approach the United States takes?
Whether prostitution should be legalization has been a hotly debated topic around the world for a number of years. Interestingly in 1949 the United Nations actually adopted a resolution in favor of the decriminalization of prostitution. Needless to say the United States did not sign this resolution.
Worldwide, prostitution is legal in 49 countries and of limited illegality in 12 countries (i.e. these countries have taken the stance not to prosecute the offence of solicitation of prostitution).10
Proponents of the legalization of prostitution argue it makes sense from a public heath and crime reduction perspective and point to arguments that it would encourage better working conditions and encourage reporting of violence and offences perpetrated against sex workers. Furthermore, proponents argue that the potential tax revenues available could be utilized to combat human trafficking. Prostitution is a $14.5 billion dollar a year industry.11
A recent study in Canada showed the strong potential for decriminalization of prostitution to greatly reduce the spread of HIV.12
In the United States the stigma of selling sex remains firmly in place and the movement for legalization is tepid at best. Eleven counties in Nevada have led the movement in legalizing prostitution.
The American Civil liberties Union (ACLU) voiced its support for the legalization of prostitution in a 2016 article.13 Most recently on August 11, 2017 international human rights powerhouse Amnesty international voted to recommend the complete decriminalization of prostitution both for buyers and sellers.
What is clear is that the upsurge in reverse sting operations brings the issue of legalization sharply into focus.
- Newsweek Article: “The growing demand for prostitution” by Leslie Bennetts on 7/18/2017
- Penal Code 647(b)(4) “A manifestation of acceptance of an offer or solicitation to engage in an act of prostitution does not constitute a violation of this subsection unless some act in furtherance of the commission of the act of prostitution by the person manifesting an acceptance of an offer or solicitation to engage in that act.”
- The court may order a person to register as a sex offender for any offence not specifically included in subdivision (c) of section 290 if the court finds at the time of conviction or sentencing that the person committed the offence as a result of sexual compulsion or for purposes of sexual gratification.
- Confessions of a “John” arrested in Arlington. http://www.arlnow.com/2012/07/30/confessions-of-a-john-arrested-in-arlington/
- Sherman v United States (1958) 356 US 369, 2 L Ed 2d 848, 78 S Ct 819
- 2017 California Criminal Jury Instructions (CALCRIM) 3408
- Prostitutes Education network “Prostitutes in the United States – the statistics” http://bayswan.org/stats.htm
- “Global epidemiology of HIV among female sex workers: influence of structural determinants” The Lancet volume 385, no 9962, p55-71, 3 January 2015
- “ACLU: It’s time to decriminalize prostitution” July 6, 2016 article NJ.com