Our overly-Puritan society continues, with America having a bipolar relationship with sex. On the one hand, sex sells everywhere from television commercials, to the movies rated R to XXX, to novels, to exotic cabarets/strip clubs, to bachelor parties, to escorts and prostitutes. On the other hand, on the Puritan and restrictive side, we still have antiquated indecency laws governing television and radio that clash with the First Amendment, censorious obscenity laws, self-censorship by film-makers to get an R rating rather than NC-17 rating, self-censorship of music and the written word to get sold in WalMart, strict limits on the number and location of exotic cabarets, and police stings galore on suspected prostitutes/providers and their customers/Johns/hobbyists.

The prostitution police stings continue, including in my headquarters county of Fairfax, Virginia. I have blogged before about defenses against prostitution prosecutions. Now I address a unifying approach I recently used in three prostitution sting defenses from two separate stings, to convert the original prostitution charge to a guilty or no contest plea to disorderly conduct under Virginia Code § 18.2-415(A) with no active jail time.

Long before the case negotiations, my clients and I doggedly worked on their cases. I obtained discovery, including watching the incident videos and talking with the police involved with the stings. My clients obtained clean HIV tests, and completed numerous documented community service hours. We got a court reporter for each trial, to have a record to use in the event of a trial conviction and appeal. We arrived at our best defensive strategy and flowchart against the three prostitution elements of [1] offering “money or its equivalent to another [2] for the purpose of engaging in sexual acts as enumerated in subsection A and [3] thereafter [doing] any substantial act in furtherance thereof.” Va. Code § 18.2-346.

In each instance, I was able to include in my negotiation discussions the point in each sting video that showed the provider trying to upsell my client, including to offer penetrative sexual activity (prostitution is penetrative sexual activity, as confirmed in Va. Code § 18.2-346 and Va. Code § 18.2-346) where my client initially expressed interest in a massage.

The idea in my pointing out this upselling into offers of penetrative sexual activity was not to convince the prosecutor that I would win an entrapment defense — which is not proven by the mere happening of a police sting — but to talk sense to the prosecutor about why amending the prostitution solicitation charge to disorderly conduct with no active jail time, made sense for all parties concerned.

Avoiding active jail can be very important in these and other cases, at least to those with security clearances, where a misdemeanor conviction without active jail time can be better for keeping a security clearance than when the number of days in jail begin adding up. Avoiding a prostitution conviction in the first place is ideal for those with security clearances, without United States citizenship, and for those wanting to protect their reputations.

The bottom line is that — even though police and prosecutors might applaud me for saying so — it is too dicey for a person to risk being charged with soliciting a prostitute nor with offering prostitution services where such services are criminalized. However, prostitution stings and prosecutions continue because police involved in such stings know they are going to rack up multiple prostitution charges in only one day in the same sting.

Prostitution must be legalized. Until then, I will continue defending such criminal charges.