We often get asked in our offices: Is prostitution legal in California? Although it is often a consensual practice, prostitution is still a crime in California. It generally appears associated with human trafficking and drug crimes.
If you have been charged with prostitution, our Los Angeles criminal lawyers can help. We have over 40 years of experience litigating these matters with great success.
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So, is prostitution legal somehow in California?
In Los Angeles and throughout the state of California, prostitution is illegal, under Penal Code 647b PC. Both the buying and selling of sex are prohibited. Despite the fact that a recent law protects the rights of sex workers.
The practice of prostitution carries punishments that include fines of $1,000 and up to 6 months in prison. On the other hand, hiring company ladies (escorts) does not, as we will explain later.
Prostitution is considered to be the act of having sexual relations with another person in exchange for money or another good. Also to any lewd act of a person with a client that seeks to cause sexual gratification or excitement.
What is a lewd act?
It is any activity of a sexual nature between a prostitute and her client. It involves physical contact or not with the genitals, buttocks and breasts of the woman.
Lewd acts also seek to provoke excitement in those who hire these services. They differ from other sex crimes because there is no penetration.
You may also be interested in reading our article on lewd acts with a child. There you will learn everything about this heavily punished crime in California.
Elements that define the crime of prostitution in Los Angeles, California
For the purposes of California law, a person who hires a prostitute is just as guilty as a person who practices prostitution. There is not only female prostitution, but also male prostitution and both are equally punished.
The three elements present in prostitution are:
- Regularity: That is, the repeated or customary practice of the crime. Occasional or isolated acts, including payments, are not properly considered prostitution.
- Remuneration or payment: In exchange for sexual favors there must be a consideration in money.
- Sexual favor or delivery: This refers to the complete sexual practice.
- Such payments do not necessarily have to be made to the person who is hired to perform the sexual act. Another person, for example, a pimp can receive the money.
- The payment does not necessarily have to be in money either. They can be valuables (clothes, goods) or drugs.
- The request for sexual relations must be made directly to the person by at least one of the parties.
- Both the invitation to engage in sexual activity and acceptance must be deliberate, without coercion.
Examples of the crime of prostitution in California
Prostitution in California is considered:
- Paying a prostitute male or female (gigolo/rent boy) for sexual services.
- Offering drugs to a young woman in exchange for performing “oral sex”. Regardless of the fact that she is a prostitute by profession and she refuses to do it.
- Allowing a man to fondle bare breasts or genitals in exchange for money.
- Accepting a woman’s request to have sex with her in exchange for money.
What do the new California laws say about prostitution?
The laws that went into effect in January 2020 do not decriminalize the crime of prostitution in California. So prostitution is still not legal in California. But they did introduce some reforms with respect to the old laws on this matter.
Among the approved changes are:
- The type of evidence that can be submitted at a trial on the charge of prostitution.
- Criminal benefits for sex workers who report a serious crime.
A bill submitted to the Legislature seeks to repeal the crime of loitering to practice prostitution. The proposal still awaits its discussion and approval or denial.
What does Senate Bill 233 say?
This bill (SB 233) was passed on July 30, 2019, but went into effect on January 1, 2020. The two most important changes made to California prostitution law can be summarized as follows:
- Legal immunity for sexual crimes is granted to those who report other related crimes to the authorities that lead to the arrest of other people.
- Possession of condoms cannot be used as probable cause to proceed to arrest a person for prostitution.
In general, SB 233 protects those who report being victims or witnesses of some crimes, including:
- Any serious crime.
- Certain serious types of violent crimes covered by Penal Code 245, such as:
- Assault with a deadly weapon;
- Assault with a firearm;
- Assault by means likely to lead to serious bodily injury.
- Domestic violence with bodily injury.
- Sexual assault.
- Extortion (Penal Code 518 PC).
- Human trafficking (Penal Code 236.1 PC).
- Harassment or stalking (Penal Code 646.9 PC).
What are the benefits of reporting prostitution crimes?
Basically, it prohibits the person making the complaint from being arrested on a charge of:
- Drug misdemeanor,
- Creating or maintaining a public disturbance (Penal Code 372 PC).
- Engaging in lewd acts (Penal Code 647(a) PC).
- Participate in prostitution activities or request these services (Penal Code 647 (b) PC).
- Loitering for the purpose of committing the crime of prostitution (Penal Code 653.22 PC).
Before prostitution laws were reformed in California, reporting this crime could incriminate the person accused of committing it. The impossibility of denouncing and punishing the mafias facilitated the growth of this activity.
Senate Bill 357
If this bill is approved, the law that prohibits loitering for the purpose of practicing prostitution would be repealed.
Likewise, it would allow those who have paid sentences for this crime to ask a court to dismiss and clean their criminal records.
How is the crime of prostitution punished in California?
It is considered a minor sexual offense, whose first conviction carries a punishment of:
- 6 months in jail, no-show informal probation and community service.
- $1,000 in fines.
- HIV test.
On the other hand, prostitution is classified as a previous crime. It means that higher sentences are imposed for additional crimes, including mandatory:
- 45 days in prison minimum for a second offense.
- 90 days in jail in a county jail for a third and subsequent offenses.
- First offenders will serve a maximum of 6 months in jail and pay up to $1,000 in fines. This excludes other assessments and fees.
The law considers those who practice prostitution as guilty as those who seek sexual favors (client or “john”). But equally to the person who profits or benefits from this practice: the pimp.
A prostitution conviction does not result in registration as a sex offender. However, although it is considered a misdemeanor, the charge of prostitution can:
- Cause problems for the defendant with immigration procedures, if they are foreigners.
- Get a criminal record.
- Tarnish the person’s reputation with their family and at work.
When the crime is committed in a residential area and inside a motor vehicle, it could lead to:
- Driver’s license suspension.
- Confiscation of the vehicle by the police.
How is the crime of requesting sexual favors from a minor constituted?
A person can be penalized for having sexual relations with children or adolescents if:
- There was penetration regardless of its level or whether or not there was ejaculation.
- The defendant and the victim were not spouses at the time.
- The victim was under the age of eighteen when the crime occurred.
On the other hand,
- The crime of soliciting sexual relations from a minor is constituted whether or not there is use of force.
- It does not require proving whether it was with or without the consent of the victim.
- California considers it a crime, even if there is a romantic relationship between both people (boyfriends, lovers, fiancés).
What are the penalties for having sex with a minor?
Soliciting sexual acts from a minor is a wobbler. It is punishable as a misdemeanor or felony. To do this, the judge will take into account the circumstances of the event, the age of the accused and their criminal record.
- Depending on the age difference between the accused and the minor – victim, the sentence increases. When it is not more than three years, said difference is considered a misdemeanor.
- If it is over three years, it is punishable as a misdemeanor or felony.
- If the defendant is over 21 years of age and the victim is under 16 years of age, it is punishable as a misdemeanor or felony.
Can a minor be arrested for practicing child prostitution?
No minor can be arrested for engaging in prostitution in California. This practice was decriminalized since January 2017.
However, if the police catch a minor selling their body, they will place them in the custody of a county child welfare agency. They will immediately be placed under the guardianship of a juvenile court.
What is the crime of pimping?
The crime of “instigation and pimping” is described in Penal Code 266h and 266i. The pimp can be arrested under the charge set forth in Penal Code 653.23, which prohibits “directing, supervising, recruiting or assisting” a prostitute.
The pimp will be arrested and punished if:
- Organizes or participates in soliciting the act of prostitution.
- Receive part or all of the payment for the sexual services provided by the prostitute.
- Get or participate in the acquisition of the prostitute.
The punishment for inducing a person to practice prostitution is up to 6 years in prison and/or payment of a maximum fine of $10,000.
Supervising or helping a prostitute
Penal Code 653.23 PC also makes it a crime to supervise or otherwise assist a prostitute. This law also punishes those who charge or receive profits for participating in the process of hiring a prostitute.
How is a request for sexual favors scored?
It has a criminal qualification similar to the exercise of prostitution. The only difference is that prostitution involves the sexual act itself and payment. While the request for sexual favors involves the search for this practice.
In California, the crime of soliciting sexual favors for money includes:
- Ask another person to practice prostitution;
- Expressly with the intention of receiving sexual pleasure during the act of prostitution;
- With the person receiving the request.
Possible legal defenses against the crime of prostitution in California
Typically, criminal defense attorneys well ware that prostitution is not legal in California make the following claims:
- The defendant is innocent and was the victim of a police raid with decoys.
- There is not enough evidence to prove the client’s guilt beyond a reasonable doubt.
- There was no intention to commit a crime of prostitution when looking for sex or exercising the activity.
- Violation of rights by the police or possible errors made during the judicial process.
Differences between prostitution and escorting
- Basically, companions or escorts are people who charge for providing company services on dates and social gatherings.
- The accompaniment does not necessarily involve sexual acts. This is the main difference from prostitution.
- Both practices coincide in terms of the payment received for the services provided.
If it is proven that the true purpose of hiring an escort was to have sexual relations with him/her, the person who hires them can be accused of prostitution. Even if it does not lead to sexual contact between the two.
To be an escort in California, a license is required. These services are usually booked online through an escort agency.
Prostitution and human trafficking
Prostitution is not legal and is fueled by human trafficking, another crime for which California ranks first in the US.
The sex trafficking of women and children is a very lucrative criminal industry. The mafias dedicated to human trafficking obtain millionaire income. It is estimated that a person can get between $150,000 and $200,000 for each person/child they exploit.
According to research conducted by the National Human Trafficking Hotline organization :
- Criminals use various methods to trick or coerce people into prostitution. From falling in love (the so-called Romeos who woo their victims with money, gifts and trips) to intimidation or blackmail.
- In 2020, a total of 13,594 cases of human trafficking were reported nationwide.
- In California, the number of cases related to this crime reached 4,970, equivalent to 9.6% of the national total.
- One in seven minors who abandon their home falls into the hands of these criminal networks in less than 24 hours.
- The victims of sex trafficking are mostly foreign women, although it also involves US citizens.
Data from UNICEF indicate that human trafficking generates around 32 billion dollars for mafias dedicated to the business of prostitution. This places prostitution as the second most lucrative crime in the world.
Now that you know that prostitution is not legal in California, if you have been charged with the crime of prostitution in California or are being investigated, just give us a call and we can help you. Our attorneys have more than 50 years of combined experience defending innocent people wrongly accused.
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