WHAT DO I NEED TO KNOW ABOUT PROSTITUTION?
Maybe nothing at all. But, if this subject matter has caught your attention, then here are some things you should know:
First, the charge of Prostitution is a two-way street. You can be arrested for:
- Having sex with someone for payment;
- Paying to someone have sex with you;
- Offering to have sex with someone in exchange for payment;
- Offering to pay someone to have sex with you.
Secondly, you can be arrested for prostitution regardless where the acts happen or how the offers are communicated. For example:
Saturday Night Sam is bored. He is lonely. He wants some companionship. Saturday Night Sam hops on the internet. He pulls up a webpage that contains multiple advertisements for all kinds of goods and services.
Saturday Night Sam sees advertisements for the sale of used furniture. He sees a landscaper advertisement. Next, Saturday Night Sam sees something about a snow blower. He clicks on the ad, but it isn’t what he is looking for.
Saturday Night Sam eventually finds some personals ads. There he sees an advertisement for sexual services as posted by Sunday Morning Susan. Saturday Night Sam sends an offer to Sunday Morning Susan. In his message, Saturday Night Sam expressly says:
I will pay you $150 if you have sex with me at my home or a hotel nearest you.
Sunday Morning Susan reads the message and says:
Ok. I will have sex with you for $150 tonight at your home. See you soon.
Sunday Morning Susan drives over to Saturday Night Sam’s house. Sam gives Susan $150. They have sex. Susan leaves the next day, on Sunday Morning.
If the police were to learn of this Sam and Susan’s arrangement and encounter, they would (and can) arrest both Sam and Susan for Prostitution. Why? How? Who cares? Well, lets look at the law (in part) on Prostitution in New Hampshire. New Hampshire RSA 645:2:
A person is guilty of a misdemeanor prostitution if the person:
- Solicits, agrees to perform, or engages in sexual contact or sexual penetration as in return for consideration [OSBORNE LAW COMMENT: Consideration is a centuries-old term for the word payment]; or
- Induces or otherwise purposely causes another to violate subparagraph (a); or
- Transports another into or within this state with the purpose of promoting or facilitating such other in engaging in conduct in violation of subparagraph (a); or
- Not being a legal dependent incapable of self support, knowingly is supported in whole or in part by the proceeds of violation of subparagraph (a); or
- Knowingly permits a place under such person's control to be used for violation of subparagraph (a); or
- Pays, agrees to pay, or offers to pay another person to engage in sexual contact as defined in RSA 632-A:1, IV or sexual penetration as defined in RSA 632-A:1, V, with the payor or with another person.
In our example, Saturday Night Sam violated section (a) of the NH Prostitution law because he “solicited” Sunday Morning Susan to have sex with him in exchange for payment. Sunday Morning Susan violated section (a) of the same law also, because she actually engaged in sexual contact and penetration with Sam in exchange for payment.
Now, what if Saturday Night Sam offered to pay Sunday Morning Susan for sex, and Susan said no thank you? In this case, Saturday Night Same violated the Prostitution law by soliciting Sunday Morning Susan’s services. But, ironically, the Prostitute in this case did not violate the Prostitution law because she refused Sam’s offer.
Ok. How about this: What if Saturday Night Sam offered (by way of email or website messaging) to pay Sunday Morning Susan for sex, Susan said yes? What if Susan gets in her car and starts driving towards Sam’s house – but the police – somehow knowing about this encounter, stop Sunday Morning Susan and arrest her for Prostitution. They then knock-on Saturday Night Sam’s door. Sam open’s the door. He thinks its Susan at the door. Sam is wearing an open-silk bathrobe. He is holding a martini in his left hand and in his right, $150 cash. The police arrest Sam. They make sure that both his handcuffs and his bathrobe belt are securely fastened.
Both Susan and Sam are chargeable for Prostitution even though they never had sex or exchanged money for sex. Why? Because under the law, Susan “agreed” to perform, or engages in sexual contact or sexual penetration with Sam in return for payment. Sam is chargeable once again because he both “solicited” Susan by offering to pay her $150 for sex. Both Sam and Susan committed Prostitution under section (a) of NH RSA 645:2 (also called a statute – the wording of which likely resembles other state’s Prostitution laws.
If we want to get technical and completely thorough, as many police detectives and prosecutors choose to do, Sam also violated section (b) of NH RSA 645:2 in that his offer to pay Susan $150 for sex “[i]nduce[d] or otherwise purposely cause[d]” Susan to violate the Prostitution law when she agreed to Sam’s offer. Susan further incriminated herself as to her agreement and intent to deliver sex services when she got in her car and began driving towards Sam’s house.
Now, just because Saturday Night Sam and Sunday Morning Susan were both arrested in these scenarios doesn’t necessarily mean that they will be convicted for Prostitution. Quite often the police don’t always have the kind of evidence that we have imagined for Sam and Susan’s example. The police would need to be able to prove that Sam and Susan engaged in sex (or agreed to do so) for some kind of exchange. Without Sam and Susan’s emails back and forth to each other, this would be a harder case for the police and prosecutors to prove.
While Sam and Susan may have some defenses available to them, please note that the following considerations are NOT defenses to Sam and Susan’s predicament:
- Sam’s offer wasn’t in person. This does not matter and no one will care. An offer to pay for sex and an agreement to provide sex for money is illegal whether the offer/agreement is written, oral, electronic, or through a third person.
- Sam did, or was planning having sex with Susan in his own home. This also does not matter. There is no “we did it in my house” exception to the NH Prostitution law. Nor is there a “we did it in a hotel and not my car” exception to the NH Prostitution law.
- In one example Susan never had a chance to get physical or anywhere near Sam. This is true, but it does not matter. Susan had already agreed to have sex with Sam for $150. She agreed to perform sex for money. It is not a defense that Susan did not have a chance to commit the act. Just as one’s inability to commit a crime is not a defense to other crimes such as attempt or conspiracy to rob or murder or embezzle (i.e. steal).
Again, no one is saying that Sam and Susan do not have very good, solid, and fact-based defense strategies available to them. They do, even with the emails. But, no one can say that the police did not have enough evidence to at least arrest and charge Susan and Sam for their behavior in our examples above. Susan and Sam will have to either go to trial, or have their lawyers work out a deal with the prosecutors.
Some people say that Prostitution is a victimless crime and that Prostitution should be legalized and regulated. Other people say that Prostitution is a crime that enslaves vulnerable women/men/transgender folks, compromises public health, and besmirches the dignity of a community. There are interesting articles and websites dedicated to this debate that you may consider reading when you have a free moment.
At OSBORNE LAW, we are not as interested in that debate as much as we are interested in keeping you out of jail and conviction free. Prostitution arrests are frequently publicized and plastered all over local papers and webpages. Especially if the Accused is an adult male seeking the sexual contact. For some reason police departments get a real hoot out of publicly humiliating Prostitution arrestees long before the Accused has even had his/her first day in court. Public mockery and “scarlet lettering” Prostituion arrestees is a favorite past-time for some (but certainly not all) law enforcement agencies.
As you already know, a Prostitution conviction (or even mere allegation) can destroy your marriage, relationship, career, and reputation. Prostitution allegations are not to be taken lightly. The good news is that these cases are harder for the State to prove than you might think given the way the law is written in New Hampshire, so all hope is NOT lost.
At OSBORNE LAW, we take Prostitution cases seriously. We are here to help you, not judge you.
At OSBORNE LAW we do not believe that a Prostitution arrest makes you a creep, a pedophile, or an otherwise person of loose morals or ill-repute.
We do believe, however, that you should not try to handle Prostitution allegations on your own without the assistance of legal counsel. At OSBORNE LAW, we are discreet, confidential, and non-judgmental. Don’t be shy and don’t let the State shame you into a guilty plea without first talking to an attorney and learning what your options are. So give us a call and lets see what Attorney Mark Osborne can do to help you minimize the public fallout from an otherwise private affair.