Solicitation, in legal terms, refers to someone asking, requesting, hiring, commanding, or encouraging someone else to commit a crime, such as murder or prostitution. Solicitation does not require that either party involved actually performs an act in furtherance of the crime, as the actual crime of solicitation occurs at the moment the solicitation is communicated to the other party.
In the specific example of solicitation of prostitution, or the sale of sexual services, the crime involves a person’s agreement to exchange money for sex. The agreement does not need to be explicit, as the actions can be enough to demonstrate agreement. The moment you agree to pay for sex, and take some action to further that agreement, the crime of solicitation has occurred. At this point, it does not matter if either party actually follows through with the crime.
In regard to actions that further the agreement, this can be something as simple as withdrawing money from an ATM in order to pay for the solicited services, or taking the hired prostitute to a motel in order to receive the solicited services.
A solicitation charge may be further enhanced if the solicitation of prostitution was to a minor, or to a person with a sexually transmitted infection. Solicitation to a minor specifically will often result in a misdemeanor charge becoming a felony.
Each state has their own set of laws regarding prostitution, and prostitution is not necessarily completely illegal in the United States. For example, prostitution is legal in some parts of Nevada but only within licensed brothels. Additionally, other counties within the state may choose to allow it. As of 2018, Nevada is the only United States jurisdiction which allows for some legal prostitution.
The exact extent of the consequences you can expect from a solicitation charge will primarily depend on your state’s prevailing laws, as well as your prior criminal record. Some typical consequences include:
- Being found guilty of a misdemeanor: As previously mentioned, the charge will be upgraded to a felony charge if solicitation of a minor has occurred. A misdemeanor offense could include probation, and/or up to two years in a county jail;
- Rehabilitative or life skill programs: This could include potentially being required to take an AIDS education course, as well as an AIDS test. Some courts have noted that there may be a connection between soliciting prostitution and drug use. As such, some courts may rule that a person found guilty of solicitation will need to participate in certain programs to educate them on developing better life skills. Upon completion, the charges will be dismissed outright. This option is not available in every state or county. Community service is another similar consequence offered by some courts; or
- Fines: Fines increase based on frequency of offense. For a first time solicitation offense there could be up to $1,000 in fines.
It is important to note that both parties involved in the agreement, not just the person offering to provide sexual services in exchange for payment, can be charged with prostitution. Further, if a third person is involved, they may be charged as “a party to the offense of solicitation of prostitution.” This third party may be referred to as the “promoter,” and can include a Madame or Pimp, or anyone who has helped with the solicitation.
Promoters can face harsher penalties than the original two parties involved. Most anti-solicitation statutes do not require that the person paying for the sexual services and the person receiving the sexual services be the same person in order for there to be charges.
Although it would seem otherwise, there are some defenses that can help a defendant. The prosecution must have proof beyond a reasonable doubt that solicitation took place.
Because of this, a lack of evidence (such as a witness to the arrangement or taped conversations concerning the solicitation) may clear a defendant. Ambiguous evidence may leave the jury doubting that the topic was prostitution, such as agreeing to be a date to a party really meaning being a date to a party.
In some situations, mistakes of fact can serve as viable defenses:
- Knowledge that the person was a prostitute: It is not a crime to want or have sex if no compensation has been offered or exchanged. Therefore, some people may be unaware that they are engaging in sexual conduct with a prostitute; or
- Service agreed upon was not sex: Compensation being offered or exchanged does not necessarily mean that the services desired was of a sexual nature.
Entrapment is a complicated defense. Being propositioned by an undercover police officer does not necessarily constitute entrapment. As long as you demonstrated some desire to commit the crime when the undercover officer offered sex when working on a prostitution case, you could still be found guilty of solicitation.
State laws regarding soliciting prostitution vary, as well as applicable punishments. A knowledgeable and qualified criminal defense attorney will be able to help you understand the charges you face as well as any information pertinent to your specific state. Additionally, they will help you understand any defenses you may have and represent you in court.