Jun 16, 2017 Virginia prostitution solicitation defense – Preparing for and executing the battle
Prostitution police stings are common at Fairfax County hotels. One cop told me that some hotels ask the cops to set up such stings because they do not want such actual activity taking place at their establishments.
Numerous times I get such cases amended to disorderly conduct, whereby active jail time — versus suspended jail time — needs to be avoided for those with security clearances regardless of the conviction.
Many prostitution solicitation defendants are married. Hopefully lawyers who use direct mail do not send direct mail to people charged with prostitution, lest the defendant’s spouse see the mailing and then the case online, then leading to conflict at best.
The possible defenses for such stings include:
– The prosecution cannot always establish which advertisement — for instance on Backpage.com — the defendant was responding to.
– The prosecutiion cannot always tie to the defendant the text messages purportedly being sent to the purported prostitute to set an appointment
– Entrapment is often a high bar to reach, but related to that is to point out when the defendant only is seeking time or a massage with the purported escort/provider, when it only is the provider who talks about particular sex acts and condoms.
– Sometimes the purported John/hobbyist enters the hotel room and leaves payment on a table before any sexual acts are discussed. When that happens, the argument is all the stronger that the defendant was paying for time with the escort, and that any sexual activity that might be discussed or that followed was non-commercial, lawful activity between two consenting adults.
– Challenge whether the defendant had the intent to engage in any activity that is part of the prostitution definition. Unfortunately, the definition seems to include happy endings for those claiming to want a massage, and happy endings seem to fall under the definition of sexual contact. The prosecutor must prove each of the three elements of prostitution solicitation beyond a reasonable doubt. Those elements are  offering “money or its equivalent to another  for the purpose of engaging in sexual acts as enumerated in subsection A and  thereafter [doing] any substantial act in furtherance thereof.” Va. Code § 18.2-346. Therefore, it prostitution solicitation does not include massages (with or without so-called non-penetrative “happy endings) nor does it include paying to watch a purported escort disrobe and display and touch his or her body.
– Sometimes the detaining police officer who interviews the defendant post-detention did not see nor hear what was happening in the adjoining hotel room, thus making that a detention without probable cause absent testimony of the cops who actually observed or heard the activity with the purported prostitute.
Things the defendant might do in advance of the trial date to improve his or her chances through negotiations, at a dismissal or an amendment to disorderly conduct or trespassing include:
– Get a negative HIV test;
– Perform numerous documented voluntary community service hours;
– Seek a psychologist’s positive prognosis that the defendant is unlikely to commit prostitution activity in the future.