Criminalization turns an act into a crime. Criminalization turns a citizen into a criminal. Criminalization turns a community into a target population.
Criminalization of prostitution outlaws the exchange of sexual activity for resources. Solicitation laws cover the agreement to participate, offering and/or discussion of engaging in prostitution, and may criminalize both the buyer and seller, depending on the state statute. This is a higher bar than loitering for the purposes of prostitution, which does not require an agreement or conversation to be in violation of the law. Sometimes they are part of the same law and criminalize both the selling and buying of sexual services. For example, in Illinois, the prostitution law covers, “Any person who knowingly performs, offers or agrees to perform any act of sexual penetration as defined in Section 11-0.1 of this Code for anything of value, or any touching or fondling of the sex organs of one person by another person, for anything of value, for the purpose of sexual arousal or gratification commits an act of prostitution.” (Example, Illinois.) Other states have bifurcated the law, such as in Colorado, where prostitution is the offering or selling of sexual services and solicitation is the agreement to buy sexual services. Most states include the agreement to exchange sexual services as meeting the definition of prostitution. (Example, Colorado). One challenge that advocates should note is that when the same charge criminalizes both the buying and the selling, such as the Illinois statute, it can be unclear from annual arrest numbers who is being arrested and for what. (To read more about criminalization of buyers of sexual services, see Patronizing.)
Different states may or may not make clear in the statute what kinds of behaviors are considered sexual activity. In New York, the law is vague, stating only that, “A person is guilty of prostitution when such person engages or agrees or offers to engage in sexual conduct with another person in return for
a fee.” (Example, New York.) This leaves it open to what is being policed and arrested for, and what conduct has been challenged and struck down in court as meeting the definition. In other states, there is a clear outline of what constitutes sexual conduct in the law itself. In other states, such as New Jersey, there is a clear list of what constitutes sexual activity, which states, “”Sexual activity” includes, but is not limited to, sexual intercourse, including genital-genital, oral-genital, anal-genital, and oral-anal contact, whether between persons of the same or opposite sex; masturbation; touching of the genitals, buttocks, or female breasts; sadistic or masochistic abuse and other deviate sexual relations.” (Example, New Jersey).
The majority of states also criminalize the exchange of anything of value, not just the exchange of currency. This means that sex in exchange for cash, food, drugs, a place to stay, travel, or anything that the court would consider having value, meets the definition of a commercial sex act.
Often, prostitution laws are a misdemeanor where individuals race a range of possible penalties, including fines (on top of court fees) and jail time. In some states, multiple arrests will incur increasing penalties, including more jail time, higher level misdemeanors or felonies. (Example of a prostitution law with escalating charges, Arizona (Title 13. Criminal Code § 13-3214).
Additional Elements: Immunity and Affirmative Defense
Some states have added provisions to their prostitution laws which would protect people from prosecution, most notably affirmative defense and immunity.
An affirmative defense is “This is a defense in which the defendant introduces evidence, which, if found to be credible, will negate criminal liability or civil liability, even if it is proven that the defendant committed the alleged acts.” (Cornell Legal Information Institute) In prostitution charges, this often is included for someone who has been designated a victim of trafficking and is being compelled or forced by their trafficker to engage in commercial sex. In practice this would mean that once a person is charged, their attorney would raise the affirmative defense to the judge during a trial in order for the person not to be found guilty, or for the charges to be dismissed. This is still a plea, so it’s not a guarantee, but it provides a clear path for dismissal of the charges.
Immunity from prosecution is a similar legislative inclusion of protection from the criminal legal system, which is a little stronger than an affirmative defense. Immunity means that when someone is determined to be a victim of trafficking, they cannot be charged with prostitution, or the charged must be dropped.
Importantly, neither of these would be necessary if commercial sex were decriminalized.
Example of a Prostitution Law: Nebraska
Prostitution; penalty; affirmative defense; immunity from prosecution; law enforcement officer; duties.
(1) Except as provided in subsection (5) of this section, any person who performs, offers, or agrees to perform any act of sexual contact or sexual penetration, as those terms are defined in section 28-318, with any person not his or her spouse, in exchange for money or other thing of value, commits prostitution.
(2) Any person convicted of violating subsection (1) of this section shall be punished as follows:
(a) If such person has had no prior convictions or has had one prior conviction, such person shall be guilty of a Class II misdemeanor. If the court places such person on probation, such order of probation shall include, as one of its conditions, that such person shall satisfactorily attend and complete an appropriate mental health and substance abuse assessment conducted by a licensed mental health professional or substance abuse professional authorized to complete such assessment; and
(b) If such person has had two or more prior convictions, such person shall be guilty of a Class I misdemeanor. If the court places such person on probation, such order of probation shall include, as one of its conditions, that such person shall satisfactorily attend and complete an appropriate mental health and substance abuse assessment conducted by a licensed mental health professional or substance abuse professional authorized to complete such assessment.
(3) It is an affirmative defense to prosecution under this section that such person was a trafficking victim as defined in section 28-830.
(4) For purposes of this section, prior conviction means any conviction on or after July 14, 2006, for violation of subsection (1) of this section or any conviction on or after July 14, 2006, for violation of a city or village ordinance relating to prostitution.
(5) If the law enforcement officer determines, after a reasonable detention for investigative purposes, that a person suspected of or charged with a violation of subsection (1) of this section is (a) a person engaging in those acts as a direct result of being a trafficking victim as defined in section 28-830, such person shall be immune from prosecution for a prostitution offense or (b) a person under eighteen years of age, such person shall be immune from prosecution for a prostitution offense under this section and shall be subject to temporary custody under section 43-248 and further disposition under the Nebraska Juvenile Code. A law enforcement officer who takes a person under eighteen years of age into custody under this section shall immediately report an allegation of a violation of section 28-831 to the Department of Health and Human Services which shall commence an investigation within twenty-four hours under the Child Protection and Family Safety Act.
Post Conviction: Expungement and Vacatur
See the Impact of Criminalization, including post-conviction ramifications.
See a longer discussion on Post-Conviction Relief.
Because prostitution charges are based at the state level (as opposed to city or federal), erasing charges and convictions are up to the state where that charge happened. Many states allow people to petition for expungement, or the removal of charges from their record, for misdemeanors more broadly, and prostitution charges may be one of those included in the broader process. There are certain requirements that each state asks a person to meet in order to qualify for the ability to petition for their record to be cleared. In Vermont, for example, to qualify for the ability to petition for expungement, the conviction must be ten years old, the individual must not have received a felony in the last ten years and a misdemeanor in the last five, and all restitution must have been paid. Even if those conditions are met, the petition may still be denied by the Court. (Example, Vermont)
Vacatur is a specific form of removing those convictions that has been carved out for people who have been identified as victims of trafficking in persons. In most states, if someone is an identified victim of trafficking, they can file a motion for convictions tied to that situation to be removed from their record. In states with a vacatur process, which convictions are eligible differ by state, but in all states which have a process include prostitution convictions.