Arizona Criminal Laws: Prostitution vs Sex Crimes
It really is hard to believe. Arizona prostitution/solicitation is not actually a “sex” crime. It obviously involves a sex act for an exchange of something of value (usually money), but prostitution does not fall within the heinous scope of Arizona’s sex crimes.
Generally speaking, crimes involving sexual offenses fall within the scope of Title 13, Chapter 14 of the Arizona Revised Statutes. If convicted of a sex crime, in most cases you are facing a felony conviction, potential prison, a possibility of LIFETIME probation, and registration as a sex offender. But, since prostitution with between consenting adults is not a sex crime, mandatory prison and registration as a sex offender do not apply.
WHAT IS ARIZONA PROSTITUTION?
But, prostitution is still a crime. Sorry to be the bearer of bad news. Our legislature has seen fit to devote an entire section of the criminal code to prostitution. Title 13, Chapter 32 of the Arizona Revised Statutes sets forth the State laws concerning prostitution.
“Prostitution” means engaging in or agreeing or offering to engage in sexual conduct under a fee arrangement with any person for money or any other valuable consideration. 13-3211(5).
*The statute does not differentiate between the prostitute or the client.
*The statute does not require an exchange of money, only an exchange of something of valuable consideration.
*The statute covers the actual act of hiring someone to engage, OR AGREEING TO ENGAGE in sexual conduct for compensation.
The statutes further defines “Sexual conduct” as sexual contact, sexual intercourse, oral sexual contact or sadomasochistic abuse. “Sexual contact” means any direct or indirect fondling or manipulating of any part of the genitals, anus or female breast.
EXAMPLES OF PROSTITUTION
Gentleman’s Club/Strip Bars
When enjoying the entertainment at a gentlemen’s club, it is crucial to understand that there is a reason you are not permitted to touch the performers. You are exchanging money to watch them perform. If the performance involves “sexual contact” amongst one another or with other patrons, you have now exchanged something of value (your cover charge or that dollar bill) to watch their sexual contact. In fact, lap dances constitute as indirect fondling. Both you and the performer can be arrested for prostitution. Consequently, the owner of the club could be subject to numerous felony charges for allowing prostitution in his club.
Sounds crazy but it is the law. The real issue then becomes the way in which some individuals are investigated, arrested, and prosecuted. Having interviewed several Vice Officers over the years, we’ve come to the conclusion that this is an issue of manpower and targeting those establishments based upon citizen complaints.
Massage parlors are another venue where someone can engage in an act of prostitution. Again, you are exchanging something of value (money) and either directly receiving a prohibited sex act or watching an act of sexual conduct. Unless there are cameras in the massage rooms, there is little chance of the client being arrested. But the girls are always subject to being arrested.
Should you ever be contacted regarding having received a “massage.” Do not answer the question. You have a right to remain silent: do so. Any other acknowledgment can easily lead to criminal charges. If you do not corroborate the girl’s story, they have no evidence a crime was committed. Legally, if contacted by police, the only thing you need to confirm is your identity and basic biographical information. If it is on your driver’s license, that is the limit of the information you need to provide.
The Business Owner
Business owners are at risk if and when the employees are investigated or arrested for prostitution derived from the business. For example, sex-based massages, sex menus, permitted sexual contact and drug use at the place of business can potentially land the business owner in hot water. This is due to fact that owners are presumed to know the particulars of their own business.
Once the employees are arrested, they often have no qualms about selling out the owner. The owner will be subject to an arrest for running an illegal enterprise (a felony and racketeering offense). Afterwards, the police will obtain search warrants that authorize turning over the books that contain client contact AND credit card information. With that information in hand, the police can come after you.
If the business is being prosecuted under the racketeering statutes, the business and any business assets may be seized and forfeited. Recently, the Champagne Room in Phoenix made the local news when the owners and employees were arrested. The majority of charges were felonies including operating an illegal enterprise, money laundering, prostitution, receiving earnings from prostitution and pandering. Operating an illegal enterprise and money laundering constitute as racketeering crimes. The owners were forced to forfeit their business and personal assets in addition to serving prison time .
In the example of the Champagne Room case, the patrons’ identities became known as officers conducted their investigation. The clients were unknown at the time of the owners’ arrests. However, the officers developed probable cause in order to obtain search warrants over the course of two years. These search warrants ultimately granted access to clientele information. This information would allow the prosecutor to pursue and criminally prosecute the clients. You do not want to be in that position.
Policemen are not required to disclose that they are in fact police. They are allowed to strip if it means gaining inside access to the business, massage parlor, or backroom.
Often set up as an out call or modeling ad, undercover officers will have you call them for an appointment and meet them at a hotel, condo, etc… In these cases, you are normally being video and audio recorded. Once you arrive and discuss a sex act for money, they will barge in and make an arrest.
Another example is an undercover officer working the street. I specifically remember one undercover female officer boasting that she could get clients even when she wore a jacket that said police. She would deny she was an officer, negotiate a deal, and the client would get bombarded by uniformed officers only a few minutes later. Her conversation as she leaned in the car was always recorded.
If you are arrested, remember, NEVER LIE TO POLICE, BUT DO NOT ANSWER THEIR QUESTIONS. The only questions you need to answer are your name and other biographical information. DO NOT GIVE THEM YOUR EMPLOYMENT INFORMATION. The booking sheet is public. The arrest is embarrassing enough without bringing your employer into it. If they ask, politely tell them you do not wish to answer.
DO NOT MAKE ANY ADMISSIONS. I understand they may have caught you in the act. But proving it with the rules of evidence in the courtroom is a different process. Don’t give extra evidence with admissions. You will not be able to talk your way out of an arrest. Just remember to remain silent.
Arizona prostitution is not a sex crime. So, registration as a sex offender is NOT an issue. (BUT SEE CHILD PROSTITUTION BELOW)
Under Arizona’s State Statute, a first-time conviction is a misdemeanor. The maximum penalty could result in 6 months of jail, 3 years of probation, and fines up to $2,500 plus surcharges. But the real problem is the MANDATORY MINIMUM PENALTY IS 15 CONSECUTIVE DAYS IN JAIL. If one has prior convictions for the same offense, the mandatory minimum jail increases substantially.
Unlike the misdemeanor charges above, any prostitution act with a minor is a felony. If convicted, prison is a mandatory outcome unless the minor was 15-17 years of age. In that case, probation may be possible. However, probation would carry a minimum 180 day jail term that may be reduced to a 90 day term if you complete a counseling program. In all other situations, a conviction requires prison time.
As sexual motivation is a underlying component of the crime, the court could consider lifetime probation under sex offender terms. Additionally, the court may consider requiring registration as a sex offender.
DEFENSES TO PROSTITUTION CASES
In these cases, normal defenses are to attack the “evidence” or raise an entrapment defense.
Entrapment pertains to a situation where the defendant was coaxed into committing a crime by an officer. For instance, the officer will allow you to bring up “what you want” and to initiate the question of compensation. This type of defense is difficult to prove and rarely works as a valid.
In most cases the case is recorded. It is in the cases where the recordings are not clear or ambiguous that you have strong defenses.
If the prostitution case involves the officer only as a witness, the prosecutor will have a near impossible time proving your guilt without the other party (the prostitute) coming to testify against you. In 28 years, I have never had the prostitute show at my client’s trial. If you have made no admission, and the prostitute fails to show, the State only has the officer’s statement. Normally, he can’t testify as to what was said between the parties nor can he testify the presence of a contract for a sex act. Without proving those factors, prostitution charges are defendable.
There is a difference between going to church and repenting versus being hammered by the government for criminal wrongdoing. When you have the weight of the government trying to take away your liberty and your reputation, don’t look back on your choices and ask yourself, “What would have been the outcome, if I had hired him?”
I have successfully defended hundreds of Arizona prostitution cases using my own creative tactics. Don’t enter the fight on your own.
Howard Snader is a Board Certified Criminal Law Specialist. If you or anyone you know has been accused of any crime, please give our Phoenix criminal defense attorney a call at 602.899.3720. You may email him at [email protected] or visit his website at https://www.snaderlawgroup.com.