What is the definition of prostitution in California? Prostitution is defined as exchanging a “lewd act” for money or something else of value. This does not mean that you actually had sexual intercourse. Lewd is described as 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. Spanking someone with a paddle is considered physical contact under the law, even if no body parts touch. If the act of spanking someone (for money or something else of value) is done for the purpose of sexual gratification, then an act of prostitution has been committed. These crimes are commonly charged under the California penal code section 647(b). 1
If you are charged with prostitution, the prosecutor would have to prove you were guilty in one of these three ways:
- You were actually engaged in an act of prostitution; or
- You decide to engage in prostitution, solicited (invited) someone to do it with you and engaged in an act in furtherance; or
- Someone asked you to engage in prostitution, you agreed to do it with that person and you engaged in an act in furtherance. 1
An act in furtherance means an action that advances the process of engaging in prostitution. Some examples are:
- taking off clothes,
- getting out a condom,
- exchanging money,
- getting in a car after accepting the offer of an individual to engage in an act of prostitution. 1
Just talking to someone is not an act in furtherance.
Loitering with the intent to solicit for prostitution is commonly known as “Flagging” It is unlawful for any person to loiter in any public place with the intent to commit prostitution. This intent is evidenced by acting in a manner and under circumstances which openly demonstrate the purpose of inducing, enticing, or soliciting prostitution, or procuring another to commit prostitution.
Among the circumstances that may be considered in determining whether a person loiters with the intent to commit prostitution are that the person:
(1) Repeatedly beckons to, stops, engages in conversations with, or attempts to stop or engage in conversations with passersby, indicative of soliciting for prostitution.
(2) Repeatedly stops or attempts to stop motor vehicles by hailing the drivers, waving arms, or making any other bodily gestures, or engages or attempts to engage the drivers or passengers of the motor vehicles in conversation, indicative of soliciting for prostitution.
These crimes are charged under California penal code section 653.22. 4
Entrapment- a common misconception is that law enforcement officers have to disclose their identity if asked, “Are you a cop?” Police are allowed to lie about being police. They are allowed to do drugs. They can take off their clothes. Entrapment is nearly impossible to prove in court.
You do not have to talk to the police, FBI, INS or any other law enforcement agent or investigator. You cannot lawfully be arrested for refusing to identify yourself on the street, although this may make the police suspicious and police and other agents do not always follow the law. If you are driving a vehicle, you must show your license and registration. Otherwise you do not have to talk to anyone: on the street, at your home or office, if you’ve been arrested, or even if you’re in jail. Only a judge has the authority to order you to answer questions. 2, 3
There isn’t a bad situation that can’t be made worse by talking to the police! Whether or not you are under arrest, do not answer questions when interrogated by the police. Politely tell them, “I am going to remain silent. I want a lawyer.” Many people invoke their Miranda Rights and then continue to talk. This is a very bad idea. Anything you say to a police officer can and often will be used against you or your friends. 1
What if I’m not a citizen?Non-citizens already in the U.S.have rights under the United States Constitution. Assert your rights. If you do not demand your rights or if you sign papers waiving your rights, you may be deported before you see a lawyer or an immigration judge. Crimes of moral turpitude are grounds for deportation. This includes acts of prostitution and giving false information (lying) to the police. Better to say nothing than to give a false name. You have the right to remain silent under the Fifth Amendment (Miranda Rights). You have the right to an attorney. For immigration proceedings you do not have the right to a government appointed attorney. 2, 3
The above information was compiled from publications created by 1) Katya Komisaruk, Just Cause Law Collective, 2) National Lawyer’s Guild, 3) American Civil Liberties Union and 4) the California Penal Code. It is a very basic overview and by no means complete. Efforts to obtain more complete information should be made by all interested parties. Visit www.aclu.org ,www.nlg.org for additional resources.