Prostitution in San Diego: The Current Legal Landscape
The primary statute under California law that governs prostitution is Penal Code 647(b), which provides: "Except as provided in Section 653.22, any person who engages in the act of prostitution, or any person who agrees to engage in the act of prostitution, with the intent to so engage, is guilty of disorderly conduct, a misdemeanor." Thus, as California law stands, prostitution is illegal, but that crime is designated as a misdemeanor, rather than a felony.
In addition to Penal Code 647(b), California Penal Code 647(d), entitled "loitering for purpose of prostitution," also addresses the issue of prostitution and those associated with it.
In 2014, Penal Code 653.22 was added to California’s criminal statutes. This section of the Penal Code states , "Except as provided in subdivision (b) and notwithstanding Section 647.6 or any other provision of this code, providing that loitering by lewd conduct or soliciting for lewd conduct in a public place constitutes disorderly conduct under this or any other provision of this code, any person who loiters in any public place with the intent to commit loitering as prohibited by this section is guilty of disorderly conduct, a misdemeanor."
It is important to keep in mind that while prostitution is a misdemeanor under California law, sex trafficking is a serious felony in California, which carries a penalty of three to eight years imprisonment and/or a hefty fine.
The History of Prostitution in San Diego
The historical context surrounding prostitution laws in San Diego is as complex as the issue itself. A legacy of regulation infused with moral undertones, the legal treatment of sex workers in America reflects each society’s fundamental views on gender, sexuality, and personal choice.
In the late 18th century, British lawmakers began criminalizing prostitution for several reasons. One was that the increase of commercialized vice correlated with increased rates of syphilis and gonorrhea, but also because prostitution didn’t always fit into the state’s rigid notions of propriety among its women citizens. Finally, prostitution was seen as a civil nuisance; a social blight left over from Victorian England that had its roots in poverty and economic desperation.
Following statehood in 1848, early California lawmakers condemned prostitution as a "moral evil" and began regulating it. Early ordinances allowing police to oversee brothels, and jail sentences for pimps accompanied the "regulation" of prostitution.
Still, the police did not routinely charge for prostitution until the late 1800s. Many law enforcement agents sought to profit from prostitution by demanding bribes to look the other way. In Los Angeles for example, investigators found in one case that four officers from the LAPD had solicited prostitution in exchange for looking the other way and ignoring notices of violations. Stories such as these made national headlines, and led to government inquiries certifying that prostitution was a "deeply entrenched part of the larger social system," where police also contributed.
The price of prostitution in San Diego actually plummeted after World War II, as the influx of women to military bases made it affordable and desperate. Regulating this rampant vice proved difficult—despite the full force of legal sanctions. Undeterred, local leaders devised a new plan: to bring brothels into the light, and regulate them. It brought prostitutes out of the alleyways, and confined them to red-light districts (such as Old Town). Police could supervise operations, and meanwhile, help to identify sexually-transmitted diseases.
Ultimately, the widespread acceptance of prostitution during the 1960s, and the decriminalization of drug use led to further efforts to minimize the criminalization of prostitutes. By the mid-1970s, the majority of states had changed their laws to decriminalize or legalize prostitution at some level, and reducing penalties for such offenses.
This "tolerance policy" reflected a growth in civil rights, but did little to actually improve prostitution. Rather than make the city’s streets cleaner, the hands-off approach to prostitution merely transformed the very "mob businesses" they were designed to regulate into "contractual voluntary arrangements."
Today, the lack of regulation of prostitution has made human trafficking a global epidemic. Illegal drugs and prostitution now account for 5% of the world’s economy. Seemingly overnight, the conditions of legalized prostitution have changed, making it extremely difficult to identify and rescue individual victims of trafficking.
Penalties for Soliciting Prostitution
Liability for engaging in prostitution in San Diego can be severe. For sex workers, or prostitutes, a conviction can result in a misdemeanor charge, with potential penalties that include:
A solicitation charge, which is defined in San Diego’s Municipal Code as "being any person who does any of the following: 1. Engages in a verbal exchange with another person…with the intention of selling or engaging in prostitution." 2. Does so in a public place; 3. Is in a public place and makes an unequivocal offer to engage in prostitution." A conviction for solicitation is a misdemeanor, and while it carries a potential maximum jail sentence of six months, most people receive nothing more than a small fine.
For those who want to exercise their right to sex work, many cities and counties around the country have decided to decriminalize the industry. This means sex workers will still be at the mercy of local enforcement agencies, the extent to which municipalities enforce laws are not clear-cut. Further, sex work remains illegal under federal law.
On the other hand, those found guilty of engaging a prostitute may be punished more harshly. For those arrested due to a prostitution sting, their days in court begin quickly. Often, the stings are arranged by unmarked police cars, which randomly select unfortunate drivers for a stop into which they then solicit prostitution. Once in the office, the driver is being watched on camera, and the officer will collect their fingerprints and photograph them for their case. If a confession is obtained, there is no point in obtaining a warrant, as there is enough evidence to immediately proceed on a misdemeanor charge.
Equally, this solitary charge can lead to a ‘misdemeanor arraignment’, which is where the defendant appears in front of the judge to enter a plea of guilty, no contest, or not guilty. Upon entering the plea, the defendant can seek dismissal, or if they are found guilty, they are then sentenced. The punishment associated with these charges is usually a fine of anywhere from $1,000 to $2,000.25. The enforcement of prostitution laws can widely range. Much of this is due to the vagueness of prostitution in some laws, the legal complications surrounding the subject, and the controversies that very often surround it.
Enforcement of Prostitution Laws
Law enforcement in San Diego takes a two-pronged approach to handle prostitution-related activities. The first strategy is to target those engaged in the illegal sale of sex through vice squads that are an integral part of the San Diego Police Department. Vice units regularly conduct undercover operations leading to arrests for prostitution. In 2019, several men and women were arrested due to these operations.
The second strategy of law enforcement is to use collaborative efforts with other agencies. For example, the Homeland Security Investigation (HSI) branch works with the Federal Bureau of Investigation (FBI) to investigate human trafficking. The FBI usually spearheads these investigations, as San Diego is considered one of the top 10 cities in the U.S. for sex trafficking.
Police officers also engage in a tactic called "john school." Police invite people arrested on solicitation charges to attend courses that educate them about the emotional, physical and mental toll to the victims who offer themselves for prostitution. If the suspect pays a fine, attends the class and stays out of trouble for a certain period of time, the taxes are usually dropped.
The sex industry negatively impacts many people, including those involved in the industry, those who live near it and even the John and Mary Does who choose to break the law. For its part, San Diego law enforcement does its best to support the health and safety of everyone by enforcing prostitution laws.
Economic and Social Implications of Prostitution Law
The presence of prostitution and related solicitations in any community can have both positive and negative social and economic implications. One challenge that the City of San Diego faces is the notion that the police are preoccupied with issues related to the sex trade when they could be focusing on other street crime. The negative perception that some communities have about prostitution-related offenses is prevalent when a broad strokes view is taken and the issue is not addressed.
On the other hand, there are businesses that cater to the sex trade that pay taxes and provide legitimate income and employment to those working in the industry. The people employed in the sex trade often pay taxes , victims of human and modern-day trafficking become taxpaying citizens, and those who disclose their sexual careers can pay significant income tax in the course of paying taxes on a monthly basis. The most significant growth area is in support systems for sex workers that are funded by government grants, and private and corporate donations. Sex workers and those seeking to exit the industry now have a vast support network to assist them with housing, medical services, and psychological counseling. Those who find their way out of the industry find employment in a number of industries including the medical profession, in scientific laboratories, and in mental health clinics.
Alternatives to Prostitution and Available Services
Those affected by the sex trade in San Diego – whether as sex workers or as clients, men and women, girls or boys, visitors or locals – need to know that important resources and support services are available. Seeking help is always advisable if one encounters any legal issues while engaged in prostitution or if one wishes to obtain protection from the threat of being charged with a crime. Knowing where to go to find legal representation, support, counseling, medical services and more increases the ease and the chances of connecting with the right group.
Counseling and rehabilitation counselors work with patients who seek to understand their involvement in the sex trade or who seek to stop their involvement. Help is available not only for the sex worker, but also for the clients. Those who experienced sexual trauma and abuse often find their way into this field of work, posing additional challenges but the chance for real healing if support services are used.
Legal aid societies and clinics can provide help to those who are charged with a crime related to prostitution, human trafficking or solicitation. Finding representation is vital, and these services may be minimal or free. Public or privately run shelters offer women, men and children a safe, temporary place to live if they have been involved in prostitution and need protection. Counseling is also provided in some of these shelters.
Health care staff is trained to assist and treat victims of human trafficking and sexual exploitation. Whether one comes to a doctor for injuries or for sexually transmitted diseases, or even for emergency treatment of other medical conditions, the attending staff can provide or connect individuals with law enforcement, legal counsel and counseling services.
The courts deal with amateur hour in the sex trade with zero tolerance. Our San Diego criminal defense lawyers know that even with a charge of a misdemeanor, the penalties can be severe and long lasting. To avoid a conviction for prostitution, it’s necessary to defend yourself in court with the assistance of a skilled attorney.
Recent Controversy and Proposed Changes
In recent years, there has been a growing debate surrounding the need for comprehensive prostitution law reform in San Diego and beyond. Various stakeholders have presented differing perspectives on how best to address the complexities of prostitution in today’s society. Activists advocating for the decriminalization of sex work argue that criminalizing prostitution does not address the root causes of the issue and instead exposes those engaged in sex work to increased risks of violence, exploitation, and health concerns. They contend that by regulating and legalizing sex work, people will be empowered to work in safer environments with access to resources such as healthcare and legal assistance.
On the other hand, some law enforcement agencies and anti-trafficking advocates argue that decriminalization could lead to an increase in human trafficking and sexual exploitation. They assert that robust law enforcement efforts are necessary to protect the most vulnerable members of society and eliminate the demand for "illicit" sex. This perspective has led to the promotion of "Survivor Services , " which aim to provide resources and support to survivors of trafficking and exploitation while continuing to crack down on individuals engaging in prostitution.
Despite the contentious nature of these debates, there appears to be a shift towards exploring alternative frameworks that consider the rights and needs of both individuals engaged in sex work and those victimized by trafficking. Recently, several community organizations, law students, and activists have been advocating for a more comprehensive approach that includes decriminalization, diversion from the criminal justice system, and robust survivor services. The debate continues to evolve, but the focus is increasingly on finding solutions that adequately address the complex issues surrounding prostitution and create a legal framework that allows for the protection and empowerment of all involved.