California State Bar Approves Decriminalization Resolution
03-07-1
RESOLUTION 03-07-2007
DIGEST
Prostitution: Legalization
Deletes Penal Code sections 647(b), 647f, 315, 316, 266(h), 653.20, 653.22, 653.23, and 653.24,
amends Penal Code sections 647.1, 318, 266(i) and 11225, and adds Health and Safety Code
section 429.13, to decriminalize prostitutioni and foster safer sex practices.
RESOLUTIONS COMMITTEE RECOMMENDATION
APPROVE IN PRINCIPLE
History:
No similar resolutions found.
Reasons:
This resolution deletes Penal Code sections 647(b), 647f, 315, 316, 266(h), 653.20, 653.22,
653.23, and 653.24, amends Penal Code sections 647.1, 318, 266(i) and 11225, and adds Health
and Safety Code section 429.13 to decriminalize prostitutioni and foster safer sex practices. This
resolution should be approved in principle because of the public health and safety benefits to
those engaged in prostitutioni, their clients, and the public.
Efforts to legislate “lifestyle” have a history of failure. For example, Prohibition was just such a
failure. (U.S. Const., amend. XVIII (1919), repealed, amend. XXI (1933).) Instead, the subject
behavior continues, though underground and therefore unregulated.
Decriminalizing prostitutioni and establishing regulations for safer sex practices of those engaged
in prostitutioni will have a positive impact on public health. A 1993 study found no reported
cases of prostitutioni-related HIV/AIDS in Nevada, where brothels may be licensed in certain
counties. (Albert, Warner, et. al., Condom Use among Female Commercial Sex Workers in
Nevada’s Legal Brothels, Am. J. Pub. Health (Nov. 1995), 85(11):1514-1520.)
Regulation of prostitutioni would also reduce violence and other associated criminal behavior.
Because illegal prostitutioni occurs underground and without regulation, prostitutes are at
increased risk of violent attacks from both customers and those who engage in other criminal
activities generally associated with illegal prostitutioni. Decriminalization will separate sexual
behavior from these and other illegal activities.
Legitimizing prostitutioni will allow those involved to benefit from labor rights available in other
industries. Moreover, revenue generated for the state will offset costs associated with health and
licensing issues. This resolution will keep intact all of the laws which prohibit forced
prostitutioni as well as protection of children from same.
03-07-2
TEXT OF RESOLUTION
RESOLVED, that the Conference of Delegates recommends that legislation be sponsored to
repeal Penal Code Sections 647(b), 647f, 315, 316, 266(h), 653.20, 653.22, 653.23, 653.24; to
amend Penal Code Sections 647.1, 318, 266i, and 11225; and to add Health and Safety Code
Section 429.13; to read as follows:
§647
1
Every person who commits any of the following acts is guilty of disorderly conduct,
2
a misdemeanor:
3
(a) Who solicits anyone to engage in or who engages in lewd or dissolute conduct in
4
any public place or in any place open to the public or exposed to public view.
5
(b) Who solicits or who agrees to engage in or who engages in any act of
6
prostitutioni. A person agrees to engage in an act of prostitutioni when, with specific intent to
7
so engage, he or she manifests an acceptance of an offer or solicitation to so engage,
8
regardless of whether the offer or solicitation was made by a person who also possessed the
9
specific intent to engage in prostitutioni. No agreement to engage in an act of prostitutioni
10
shall constitute a violation of this subdivision unless some act, in addition to the agreement,
11
is done within this state in furtherance of the commission of an act of prostitutioni by the
12
person agreeing to engage in that act. As used in this subdivision, "prostitutioni" includes
13
any lewd act between persons for money or other consideration.
14
(c) (b) Who accosts other persons in any public place or in any place open to the
15
public for the purpose of begging or soliciting alms.
16
(d) (c) Who loiters in or about any toilet open to the public for the purpose of
17
engaging in or soliciting any lewd or lascivious or any unlawful act.
18
(e) (d) Who loiters or wanders upon the streets or from place to place without
19
apparent reason or business and who refuses to identify himself or herself and to account for
20
his or her presence when requested by any peace officer so to do, if the surrounding
21
circumstances would indicate to a reasonable person that the public safety demands this
22
identification.
23
(f) (e) Who is found in any public place under the influence of intoxicating liquor,
24
any drug, controlled substance, toluene, or any combination of any intoxicating liquor, drug,
25
controlled substance, or toluene, in a condition that he or she is unable to exercise care for
26
his or her own safety or the safety of others, or by reason of his or her being under the
27
influence of intoxicating liquor, any drug, controlled substance, toluene, or any combination
28
of any intoxicating liquor, drug, or toluene, interferes with or obstructs or prevents the free
29
use of any street, sidewalk, or other public way.
30
(g) (f) When a person has violated subdivision (f), a peace officer, if he or she is
31
reasonably able to do so, shall place the person, or cause him or her to be placed, in civil
32
protective custody. The person shall be taken to a facility, designated pursuant to Section
33
5170 of the Welfare and Institutions Code, for the 72-hour treatment and evaluation of
34
inebriates.
35
36
§647f
37
03-07-3
In any accusatory pleading charging a violation of subdivision (b) of Section 647, if
38
the defendant has been previously convicted one or more times of a violation of that
39
subdivision or of any other offense listed in subdivision (d) of Section 1202.1, and in
40
connection with one or more of those convictions a blood test was administered pursuant to
41
Section 1202.1 or 1202.6 with positive test results, of which the defendant was informed, the
42
previous conviction and positive blood test results, of which the defendant was informed,
43
shall be charged in the accusatory pleading. If the previous conviction and informed test
44
results are found to be true by the trier of fact or are admitted by the defendant, the
45
defendant is guilty of a felony.
46
47
§647.1
48
In addition to any fine assessed under Section 647, the judge may assess a fine not to
49
exceed seventy dollars ($70) against any person who violates subdivision (a) or (b) of
50
Section 647, or, if the offense involves intravenous use of a controlled substance,
51
subdivision (f) of Section 647, with the proceeds of this fine to be used in accordance with
52
Section 1463.23.
53
The court shall, however, take into consideration the defendant's ability to pay and
54
no defendant shall be denied probation because of his or her inability to pay the fine
55
permitted under this section.
56
57
§315.
58
Every person who keeps a house of ill-fame in this state, resorted to for the purposes
59
of prostitutioni or lewdness, or who willfully resides in such house, is guilty of a
60
misdemeanor; and in all prosecutions for keeping or resorting to such a house common
61
repute may be received as competent evidence of the character of the house, the purpose for
62
which it is kept or used, and the character of the women inhabiting or resorting to it.
63
64
§316
65
Every person who keeps any disorderly house, or any house for the purpose of
66
assignation or prostitutioni, or any house of public resort, by which the peace, comfort, or
67
decency of the immediate neighborhood is habitually disturbed, or who keeps any inn in a
68
disorderly manner; and every person who lets any apartment or tenement, knowing that it is
69
to be used for the purpose of assignation or prostitutioni, is guilty of a misdemeanor.
70
71
§318
72
Whoever, through invitation or device, prevails upon any person to visit any room,
73
building, or other places kept for the purpose of illegal gambling or prostitutioni, is guilty of
74
a misdemeanor, and, upon conviction thereof, shall be confined in the county jail not
75
exceeding six months, or fined not exceeding five hundred dollars ($500), or be punished by
76
both that fine and imprisonment.
77
78
§266h
79
(a) Except as provided in subdivision (b), any person who, knowing another person
80
is a prostitute, lives or derives support or maintenance in whole or in part from the earnings
81
03-07-4
or proceeds of the person's prostitutioni, or from money loaned or advanced to or charged
82
against that person by any keeper or manager or inmate of a house or other place where
83
prostitutioni is practiced or allowed, or who solicits or receives compensation for soliciting
84
for the person, is guilty of pimping, a felony, and shall be punishable by imprisonment in the
85
state prison for three, four, or six years.
86
(b) Any person who, knowing another person is a prostitute, lives or derives support
87
or maintenance in whole or in part from the earnings or proceeds of the person's prostitutioni,
88
or from money loaned or advanced to or charged against that person by any keeper or
89
manager or inmate of a house or other place where prostitutioni is practiced or allowed, or
90
who solicits or receives compensation for soliciting for the person, when the prostitute is a
91
minor, is guilty of pimping a minor, a felony, and shall be punishable as follows:
92
(1) If the person engaged in prostitutioni is a minor over the age of 16 years, the
93
offense is punishable by imprisonment in the state prison for three, four, or six years.
94
(2) If the person engaged in prostitutioni is under 16 years of age, the offense is
95
punishable by imprisonment in the state prison for three, six, or eight years.
96
97
§266i
98
(a) Except as provided in subdivision (b), Any person who does any of the following
99
with a minor is guilty of pandering, a felony, and shall be punishable by imprisonment in the
100
state prison for three, four, or six years:
101
(1) Procures another person for the purpose of prostitutioni.
102
(2) By promises, threats, violence, or by any device or scheme, causes, induces,
103
persuades or encourages another person to become a prostitute.
104
(3) Procures for another person a place as an inmate in a house of prostitutioni or as
105
an inmate of any place in which prostitutioni is encouraged or allowed within this state.
106
(4) By promises, threats, violence or by any device or scheme, causes, induces,
107
persuades or encourages an inmate of a house of prostitutioni, or any other place in which
108
prostitutioni is encouraged or allowed, to remain therein as an inmate.
109
(5) By fraud or artifice, or by duress of person or goods, or by abuse of any position
110
of confidence or authority, procures another person for the purpose of prostitutioni, or to
111
enter any place in which prostitutioni is encouraged or allowed within this state, or to come
112
into this state or leave this state for the purpose of prostitutioni.
113
(6) Receives or gives, or agrees to receive or give, any money or thing of value for
114
procuring, or attempting to procure, another person for the purpose of prostitutioni, or to
115
come into this state or leave this state for the purpose of prostitutioni.
116
(7) Derives or receives support from prostitutioni.
117
(b) Any person who does any of the acts described in subdivision (a) with another
118
person who is a minor is guilty of pandering, a felony, and shall be punishable as follows:
119
(1) If the other person is a minor over the age of 16 years, the offense is punishable
120
by imprisonment in the state prison for three, four, or six years.
121
(2) If the other person is under 16 years of age, the offense is punishable by
122
imprisonment in the state prison for three, six, or eight years.
123
124
§11225.
125
03-07-5
(a) Every building or place used for the purpose of illegal gambling as defined by
126
state law or local ordinance, lewdness, assignation, or prostitutioni, and every building or
127
place in or upon which acts of illegal gambling as defined by state law or local ordinance,
128
lewdness, assignation, or prostitutioni, are held or occur, is a nuisance which shall be
129
enjoined, abated, and prevented, and for which damages may be recovered, whether it is a
130
public or private nuisance.
131
Nothing in this subdivision shall be construed to apply the definition of a nuisance to
132
a private residence where illegal gambling is conducted on an intermittent basis and without
133
the purpose of producing profit for the owner or occupier of the premises.
134
(b) Every building or place used as a bathhouse which as a primary activity
135
encourages or permits conduct that according to the guidelines of the federal Centers for
136
Disease Control can transmit AIDS, including, but not limited to, anal intercourse, oral
137
copulation, or vaginal intercourse, is a nuisance which shall be enjoined, abated, and
138
prevented, and for which damages may be recovered, whether it is a public or private
139
nuisance.
140
For purposes of this subdivision, a "bathhouse" means a business which, as its
141
primary purpose, provides facilities for a spa, whirlpool, communal bath, sauna, steam bath,
142
mineral bath, mud bath, or facilities for swimming.
143
144
§653.20.
145
For purposes of this chapter, the following definitions apply:
146
(a) "Commit prostitutioni" means to engage in sexual conduct for money or other
147
consideration, but does not include sexual conduct engaged in as a part of any stage
148
performance, play, or other entertainment open to the public.
149
(b) "Public place" means an area open to the public, or an alley, plaza, park,
150
driveway, or parking lot, or an automobile, whether moving or not, or a building open to the
151
general public, including one which serves food or drink, or provides entertainment, or the
152
doorways and entrances to a building or dwelling, or the grounds enclosing a building or
153
dwelling.
154
(c) "Loiter" means to delay or linger without a lawful purpose for being on the
155
property and for the purpose of committing a crime as opportunity may be discovered.
156
157
§653.22.
158
(a) It is unlawful for any person to loiter in any public place with the intent to
159
commit prostitutioni. This intent is evidenced by acting in a manner and under
160
circumstances which openly demonstrate the purpose of inducing, enticing, or soliciting
161
prostitutioni, or procuring another to commit prostitutioni.
162
(b) Among the circumstances that may be considered in determining whether a
163
person loiters with the intent to commit prostitutioni are that the person:
164
(1) Repeatedly beckons to, stops, engages in conversations with, or attempts to stop
165
or engage in conversations with passersby, indicative of soliciting for prostitutioni.
166
(2) Repeatedly stops or attempts to stop motor vehicles by hailing the drivers,
167
waving arms, or making any other bodily gestures, or engages or attempts to engage the
168
03-07-6
drivers or passengers of the motor vehicles in conversation, indicative of soliciting for
169
prostitutioni.
170
(3) Has been convicted of violating this section, subdivision (a) or (b) of Section
171
647, or any other offense relating to or involving prostitutioni, within five years of the arrest
172
under this section.
173
(4) Circles an area in a motor vehicle and repeatedly beckons to, contacts, or
174
attempts to contact or stop pedestrians or other motorists, indicative of soliciting for
175
prostitutioni.
176
(5) Has engaged, within six months prior to the arrest under this section, in any
177
behavior described in this subdivision, with the exception of paragraph (3), or in any other
178
behavior indicative of prostitutioni activity.
179
(c) The list of circumstances set forth in subdivision (b) is not exclusive. The
180
circumstances set forth in subdivision (b) should be considered particularly salient if they
181
occur in an area that is known for prostitutioni activity. Any other relevant circumstances
182
may be considered in determining whether a person has the requisite intent. Moreover, no
183
one circumstance or combination of circumstances is in itself determinative of intent. Intent
184
must be determined based on an evaluation of the particular circumstances of each case.
185
186
§653.23.
187
(a) It is unlawful for any person to do either of the following:
188
(1) Direct, supervise, recruit, or otherwise aid another person in the commission of a
189
violation of subdivision (b) of Section 647 or subdivision (a) of Section 653.22.
190
(2) Collect or receive all or part of the proceeds earned from an act or acts of
191
prostitutioni committed by another person in violation of subdivision (b) of Section 647.
192
(b) Among the circumstances that may be considered in determining whether a
193
person is in violation of subdivision (a) are that the person does the following:
194
(1) Repeatedly speaks or communicates with another person who is acting in
195
violation of subdivision (a) of Section 653.22.
196
(2) Repeatedly or continuously monitors or watches another person who is acting in
197
violation of subdivision (a) of Section 653.22.
198
(3) Repeatedly engages or attempts to engage in conversation with pedestrians or
199
motorists to solicit, arrange, or facilitate an act of prostitutioni between the pedestrians or
200
motorists and another person who is acting in violation of subdivision (a) of Section 653.22.
201
(4) Repeatedly stops or attempts to stop pedestrians or motorists to solicit, arrange,
202
or facilitate an act of prostitutioni between pedestrians or motorists and another person who
203
is acting in violation of subdivision (a) of Section 653.22.
204
(5) Circles an area in a motor vehicle and repeatedly beckons to, contacts, or
205
attempts to contact or stop pedestrians or other motorists to solicit, arrange, or facilitate an
206
act of prostitutioni between the pedestrians or motorists and another person who is acting in
207
violation of subdivision (a) of Section 653.22.
208
(6) Receives or appears to receive money from another person who is acting in
209
violation of subdivision (a) of Section 653.22.
210
03-07-7
(7) Engages in any of the behavior described in paragraphs (1) to (6), inclusive, in
211
regard to or on behalf of two or more persons who are in violation of subdivision (a) of
212
Section 653.22.
213
(8) Has been convicted of violating this section, subdivision (a) or (b) of Section
214
647, subdivision (a) of Section 653.22, Section 266h, or 266i, or any other offense relating
215
to or involving prostitutioni within five years of the arrest under this section.
216
(9) Has engaged, within six months prior to the arrest under subdivision (a), in any
217
behavior described in this subdivision, with the exception of paragraph (8), or in any other
218
behavior indicative of prostitutioni activity.
219
(c) The list of circumstances set forth in subdivision (b) is not exclusive. The
220
circumstances set forth in subdivision (b) should be considered particularly salient if they
221
occur in an area that is known for prostitutioni activity. Any other relevant circumstances
222
may be considered. Moreover, no one circumstance or combination of circumstances is in
223
itself determinative. A violation of subdivision (a) shall be determined based on an
224
evaluation of the particular circumstances of each case.
225
(d) Nothing in this section shall preclude the prosecution of a suspect for a violation
226
of Section 266h or 266i or for any other offense, or for a violation of this section in
227
conjunction with a violation of Section 266h or 266i or any other offense.
228
229
§653.24
230
If any section, subdivision, sentence, clause, phrase, or portion of this chapter is for
231
any reason held invalid or unconstitutional by any court of competent jurisdiction, that
232
portion shall be deemed a separate, distinct, and independent provision, and that holding
233
shall not affect the validity of the remaining portion of the chapter.
234
235
§429.13
236
Operators of Businesses of Prostitution must adopt and promote safer sex practices –
237
(1) Every operator of a business of prostitutioni must –
238
(a) Take all reasonable steps to give health information (whether oral or written) to
239
sex workers and clients; and
240
(b) If the person operates a brothel, display health information prominently in that
241
brothel; and
242
(c) Not state or imply that a medical examination of a sex worker means the sex
243
worker is not infected, or likely to be infected, with a sexually transmissible infection; and
244
(d) The owner and operator of a businesses of prostitutioni must not discourage the
245
use of prophylactics in the course of the business.
246
(2) The obligations in this section apply only in relation to commercial sexual
247
services provided for the business and to sex workers and clients in connection with those
248
services.
249
(3) In this section, health information means information on safer sex practices and
250
on services for the prevention and treatment of sexually transmissible infections.
251
(4) The director of the Health Services Department may implement suitable
252
regulations to enforce the above.
253
03-07-8
(Proposed new language underlined; language to be deleted stricken)
PROPONENT: Bar Association of San Francisco
STATEMENT OF REASONS:
Existing Law: Current law makes providing sexual services a crime. It is also a crime to
maintain a place where sexual services are provided (disorderly house), and to derive income
from one who provides sexual services.
This Resolution: Removes penal provisions for consensual sex acts, whether they are without
financial compensation, or for financial compensation. This resolution retains intact all of the
laws prohibiting any form of forced prostitutioni. It also retains intact all of the laws protecting
children from prostitutioni.
The Problem: People have bought and sold sexual services throughout history. Historically,
prostitutioni has been regulated and criminalized in keeping with varying moral perspectives.
Current condemnation and criminal prohibitions have not abated the prostitutioni, but rather,
have been harmful to sex workers and to the general public as prostitutioni is driven underground.
The underground nature of the prostitutioni business creates dangers and vulnerabilities for sex
workers and their clients and negatively impacts public health and safety. This illegal status
makes it easier for predators to commit acts or violence against prostitutes including human
trafficking. Prohibitions make regulation impossible.
By bringing sex worki into daylight, we will:
1. Reduce violence. Legal sex worki creates environments in which oversight is possible
which protects prostitutes and clients from violence including rape, robbery, battery,
extortion, etc.
2. Reduce trafficking in human beings in the sex trade. This measure will provide a lawful
environment for the sexual service industry, shifting enforcement resources to actual
incidences of abuse rather than consensual commercial sex in general.
3. Promote public health. Current research reflects that prostitutes have a rate of sexually
transmitted disease infections that is equal to other comparable segments of the
population. Openness in the sex industry will support sexual health educational
initiatives including safe sex practices and access to medical services for sex workers.
4. Promote labor rights and OSHA standards in the sex industry. Workers in the sex
industry deserve the same rights as workers in any other trade, including the right to legal
protection from crimes such as on the job harassment, as well as wage and hour laws.
Legal sex industry businesses can be regulated as are other industries applying OSHA
and other standard business regulations.
5. Promote positive community relations. A legal sex industry provides support for
community feedback addressing issues of zoning, traffic, advertising and public health.
This section retains Penal Code Sections 266, 266 a, 2666 e, and 266 f. These sections punish
procurement of minors, procurement by force or fraud, acquiring a prostitute, and selling a
prostitute. The penalties for these offenses remain quite severe.
The prohibition of pimping a minor has been transferred from Penal Code Section 266 h to Penal
Code Section 266 i. It carries a punishment of between three and eight years.
This proposal also enacts Health and Safety Code Section 429.13, allowing for enforcement of
safe sex practices in the business of prostitutioni.
This resolution incorporates legislation which has been enacted in New Zealand with positive
experience.
IMPACT STATEMENT:
Civil Code Sections 798.56(c)(1) and 799.70(d) provide remedies to a landlord if a resident is
convicted of prostitutioni. These will have to be addressed, but the social impact aspects can be
dealt with as zoning issues.
AUTHOR AND PERMANENT CONTACT: David Michael Bigeleisen, 101 Howard Street,
Suite 310, San Francisco, CA 94105, (415) 957-1717, bigelaw [at] ix [dot] netcom [dot] com; Margaret
Grover, Haight Brown & Bonesteel LLP, 71 Stevenson Street, 20th Floor, San Francisco, CA
94105, (415) 546-7500, mgrover [at] hbblaw [dot] com
RESPONSIBLE FLOOR DELEGATE: David Michael Bigeleisen
