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"From St. James Infirmary: Prostitution Laws Explained"
Saint James Infirmary posts this piece from The Just Law Collective on their web site.

As they state in the article, no legal advocacy group can tell people how to break the law or encourage them to do so. By understanding what the law says and what it takes to get a conviction, we can save ourselves a lot of grief, though. Since felonies have such severe consequences (like disclosure on a job application), it's a good idea for us all to know how to steer well clear of committing a felony.

Just Cause Law Collective

405 14th St., Ste. 1012, Oakland, CA 94612; (510) 652-9937 voice and fax

The following information is to help you understand some of the California laws about sex. This material is not intended to help you violate or circumvent the law, but rather to guide you in determining the limits of legal behavior.

California Penal Code section 647(b): Prostitution

Prostitution is defined as exchanging “a lewd act” for money or something else of value. The lewd act doesn't have to be sexual intercourse. It can merely be physical contact between two people, in which one person touches the genitals, buttocks or (female) breasts of the other person, for the purpose of sexual gratification. It doesn't matter which of the two people is to be turned on – it can be the person touching or the person being touched. And it doesn't matter which part of the body does the touching (finger, elbow, etc.) as long as its target is one of the sexual areas listed above.

If you were charged with prostitution, the prosecutor would have to prove you were guilty in one of these three ways:

(1) You actually engaged in an act of prostitution; or

(2) You decided to engage in prostitution, solicited (invited) someone to do it with you, and engaged in an act in furtherance; or

(3) Someone asked you to engage in prostitution, you agreed to do it with that person, and you engaged in an act in furtherance.

An act in furtherance is any action that furthers the process of engaging in prostitution. Examples of acts in furtherance are: taking off clothes, getting out a condom, exchanging money, or leading the other person to a place to have sex. Just talking is not an act in furtherance.

Most prosecutions for section 647(b) are based on the third scenario described above, with a male undercover officer posing as a john. The following is a streamlined example:

One of the "elements" which the prosecutor must prove is the defendant's state of mind. The prosecutor has to show that the defendant had the "specific intent" to engage in prostitution. Usually this is proved by something the defendant said. But one judge pointed out that there wouldn't be the right specific intent if the defendant only solicited someone as a joke, without actually intending to go through with it. People v. Love (1980) 111 Cal.App.3d Supp. 1. That is, the words have to match what's really in the defendant's mind.

Penal Code section 647f: Prostitution While HIV+
<When I look up 647(f) in the California Penal Code, it deals with public intoxication-MM>

Under Penal Code section 647f, it's a felony to engage in prostitution if you know you're HIV+. To prove it, the prosecutor has to show that you:

(1) have a prior conviction for a sex crime (anything from prostitution to rape);

(2) and following that conviction, you were tested and told that you are HIV+;

(3) and then you committed prostitution again.
The maximum penalty for section 647f is three years in prison.

Penal Code section 266h: Pimping

Pimping is a felony, punishable by three, four or six years in prison. The prosecution has to prove that the defendant was either:

(1) Deriving support from a person the defendant knew to be a prostitute (and the support came from the proceeds of prostitution);

(2) Soliciting customers, or being paid to solicit customers, for a person the defendant knows to be a prostitute.

Penal Code section 266i: Pandering

Pandering is a felony, punishable by three, four or six years in prison. The prosecution has to prove that the defendant procured or persuaded (through promises, threats or fraud) another person to become or stay a prostitute. Section 266i lists quite a few variations of how this might occur. An important point, however, is that like prostitution, pandering can be prosecuted principally on the basis of a verbal agreement. For example, if the defendant meets with a person who says s/he's a prostitute, and they make an agreement about when the prostitute will start work and for what rate – the crime of pandering is accomplished, without any money changing hands yet and without the prostitute actually engaging in any acts of prostitution.

Notes on Pimping and Pandering

Pimping is a general intent crime, but pandering is a specific intent crime. That is, pimping requires only that you do certain acts; while pandering requires that you do certain acts with a particular intention.

Both pimping and pandering have minimum mandatory sentences. That is, the judge does not have the option of giving a sentence less than three years in prison. The sentences are increased if the prostitutes were under 18.

Pimping or pandering on multiple occasions cannot be charged as separate counts – the pimping or pandering is seen as one continuous course of conduct, even if it is spread over years.

Penal Code section 182(a)(1) - 647(b): Conspiracy to Commit Prostitution

Conspiracy to commit prostitution is also a felony. There is no mandatory minimum sentence for this offense. The maximum sentence is one year in jail or prison and/or up to a $10,000 fine. The elements of the offense are:

(1) The defendant agreed to work with or assist another person in committing prostitution; and

(2) Engaged in an act in furtherance of the prostitution.
If the situation involves only a prostitute and client, that is simply prostitution, not conspiracy to commit prostitution. For there to be a conspiracy, the relationship would have to be that of prostitute and colleague, or prostitute and receptionist, or prostitute and pimp, etc. Naturally, there is a certain amount of overlap between conspiracy to commit prostitution and pimping and/or pandering.

Useful Vocabulary

Felonies are crimes for which you can be sent to prison, among other penalties.

Misdemeanors are crimes for which you can be sent to jail, among other penalties.

Prisons are for incarcerating people who are sentenced to more than a year.

Jails are for incarcerating people who are awaiting trial, or who are sentenced to less than a year.

Probation is a punishment instead of, or in addition to, incarceration. "Informal probation" (also known as "court probation") doesn't involve any supervision – you just have to stay out of trouble. "Formal probation" requires that you report to a probation officer, who supervises whom you can see, where you can go, how often you get drug-tested, etc. If you violate the terms of your probation, you can be put in jail.

Diversion is a program in which you typically do community service, pay a fee, and sometimes get counseling. Once you've completed your requirements, the charges against you are dismissed – so there's no conviction on your record. Usually, you can only get diversion once, for the first offense.

Copyright 2002 Just Cause Law Collective. All content may be reprinted or excerpted for non-commercial use, provided the material
is unaltered and "Katya Komisaruk, Just Cause Law Collective" is cited as the source.

Some other definitions from alternate sources:

Infraction is punishable only by a fine, no jail time. Many traffic citations are infractions.

Parole is a conditional release from imprisonment, entitling the parolee to serve the remainder of his or her term outside the confines of an institution if the parolee satisfactorily complies with all the terms and conditions provided in the parole order.

Wobbler means the prosecution can charge either a misdemeanor or a felony. For this discussion, 261.5(c) & (d) -- sex with a minor who is more than three years younger can be either a misdemeanor or a felony.

In this thread, the US Supreme Court clarified the key definitions in prostitution:
Prostitution, in turn, is defined in 647(b) of the Penal Code as "any lewd act between persons for money or other consideration." Finally, " 'for a "lewd" or "dissolute" act to constitute "prostitution," the genitals, buttocks, or female breast, of either the prostitute or the customer must come in contact with some part of the body of the other for the purpose of sexual arousal or gratification of the customer or of the prostitute.' "

Remember: genitals, buttocks, breasts; genitals, buttocks, breasts. Anything that mentions contact of any of those parts of the body between the parties, even something as simple as a HJ, can be used in a prostitution case. Mouth-to-mouth kissing, mouth-to-neck kissing, and toy shows without touching the other person are not "lewd acts".

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