Is It a Crime to Loiter for Prostitution in California?
The criminalization of prostitution has been a longstanding topic of debate and controversy in the U.S., contributing to evolving legislation and state-specific criminal penalties over time. While some argue that decriminalizing prostitution and sex work is harmful and exploitative to involved parties, others advocate that the decriminalization of sex work is necessary to avoid infringing upon individual freedoms and bodily autonomy.
Such opinions have shaped evolving legislation and criminal penalties for prostitution over time, and the state of California is no exception. Keep reading to learn which prostitution offenses are still considered illegal in California in 2023.
Understanding California’s Prostitution Laws in 2023
Governor Newsom signed Senate Bill 357 into law in 2023, decriminalizing the prostitution offense of loitering for the purpose of prostitution. To better understand the implications of this repeal, it’s essential to first understand what constitutes loitering for prostitution, and which related offenses are still punishable by criminal penalties in California.
Loitering for prostitution is a criminal offense that entails lingering or hanging around in a public place with the intent to solicit or engage in prostitution. Prior to Senate Bill 357, individuals who were found guilty of loitering for prostitution could face penalties such as fines, probation, and jail time.
While this law was initially enacted to deter prostitution-related activities and keep communities safe from the negative effects associated with prostitution, critics argued that the law allowed for subjective and discriminatory enforcement by police officers, leading to wrongful arrests and harassment of innocent individuals and the disproportionate targeting of marginalized groups—especially for women and members of the BIPOC and LGBTQIA+ communities.
Keep reading to learn more about why Senate Bill 357 was proposed, its implications after taking effect in January 2023, and how it modified prostitution laws in California.
California Senate Bill 375: The Safer Streets for All Act
On July 1, 2022, Governor Gavin Newsom signed Senate Bill 357. The new bill changed two key things about prostitution offenses in California:
- It repealed Penal Code §653.22 (“Loitering for the Purpose of Engaging in a Prostitution Offense”); and
- It modified Penal Code §653.23 (“Supervising or Aiding a Prostitute”).
While the law officially went into effect on January 1, 2023, police officers were prohibited from using §653.22 as reasonable suspicion for detention or probable cause for an arrest as soon as the bill was signed in July 2022.
Commonly known as the Safer Streets for All Act, Senate Bill 537 was sponsored by a large coalition of current and former sex workers, including activists from various advocacy groups like the Equality California and Transgender Gender-Variant and Intersex Justice Project (TGIJP), American Civil Liberties Union (ACLU), and the Coalition to Abolish Slavery and Trafficking (CAST LA).
“California’s law that criminalizes loitering with intent to commit prostitution gives law enforcement a tool to harass and discriminate against Black and trans communities, particularly women of color,” the ACLU said in an article supporting S.B. 357.“The Safer Streets for All Act will take away this outdated and subjective Penal Code section 653.22 [and] move California one step closer to acknowledging sex workers as deserving of full dignity and respect.”
It’s important to understand that Senate Bill 357 did not repeal the crime of prostitution and sex work in the state of California. prostitution and related offenses are still illegal in the Golden State, making it all the more crucial for Californians to understand the new and modified sections of the Penal Code to avoid life-altering criminal penalties. The following prostitution offenses are still considered illegal under California law in 2023:
Soliciting to engage in or engaging in a lewd act in public
Under California Penal Code §647(a), it’s illegal for individuals to engage in or solicit lewd or dissolute conduct in a public place or any location that is open to public view. Lewd conduct refers to any act that involves touching one's own or another person's genitals, buttocks, or female breasts with the intent to sexually gratify oneself or offend or annoy someone else.
To be charged under §647(a) PC, the following elements must be present:
- The person engaged in lewd or dissolute conduct (touching of genitals, buttocks, or female breasts) or solicited someone else to do so;
- The conduct took place in a public area or a location that was visible to the public; and
- The person intended to sexually gratify themselves or another person, or to offend or annoy someone else.
It is important to note that mere nudity or exposure, without any accompanying lewd or sexual behavior, does not necessarily constitute lewd conduct under this law. It’s worth noting that private acts conducted within an enclosed space, such as a home or hotel room, typically do not fall under the purview of §647(a).
Soliciting to engage in or engaging in prostitution
Under Penal Code §647(b), it’s illegal to:
- Solicit prostitution – This refers to requesting or asking someone to engage in an act of prostitution. It is illegal for both the person offering sexual services (the prostitute) and the person seeking to purchase those services (the client).
- Agree to engage in prostitution – This involves accepting an offer to engage in an act of prostitution or making an agreement with someone else to participate in prostitution. Both the service provider and the client can be charged under this provision.
- Engage in prostitution – This covers the actual act of exchanging sexual services for money or other forms of compensation. Both the person providing the sexual services and the person receiving them can be charged under this law.
For a person to be found guilty under Penal Code 647(b), the prosecution must prove that the individual either solicited, agreed to engage in, or engaged in an act of prostitution with the specific intent to participate in the exchange of sexual services for compensation. It’s important to understand that the term "prostitution" refers to any lewd act where one person receives compensation, such as money or goods, in exchange for performing the act.
Penal Code §266(h), addresses the crime of “pimping”—an illegal prostitution offense that entails knowingly deriving financial support or maintenance, in whole or in part, from the earnings or proceeds of another person's prostitution activities. In other words, an individual who profits from or financially benefits from the prostitution of another person can be charged with pimping under this statute.
To be found guilty under Penal Code 266(h), the prosecution must prove the following elements:
- The defendant knew that the other person was involved in prostitution;
- The defendant received or derived financial support or maintenance from the earnings or proceeds of the other person's prostitution activities; and
- The financial support or maintenance was provided, in whole or in part, by the other person's earnings or proceeds from prostitution.
Pimping is a serious crime in California that carries severe penalties if convicted, including imprisonment, substantial fines, and potential forfeiture of assets related to the crime.
“Pandering” is illegal under California Penal Code §266(i). This prostitution offense involves procuring another person for the purpose of prostitution or encouraging, persuading, or causing another person to become or remain a prostitute. This crime is often associated with "pimping," but pandering specifically focuses on the act of facilitating or promoting prostitution, rather than profiting from it.
To be found guilty under Penal Code 266(i), the prosecution must prove that the defendant:
- Procured, persuaded, or encouraged another person to engage in or continue engaging in prostitution; or
- Arranged, caused, or aided another person to become or remain a prostitute; and
- Acted with the intent that the other person engage in or continue engaging in prostitution.
Some examples of pandering activities include:
- Using force, threats, or intimidation to persuade someone to become a prostitute
- Transporting or providing housing for someone with the intent of facilitating their work as a prostitute
- Finding clients or arranging appointments for someone who is working as a prostitute
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