One of the most commonly used defenses against prostitution charges, entrapment is alleged when an undercover officer poses as a pimp or a customer and engages the offender in sexual activity for money. Although rare, it is possible for a law-abiding citizen to be caught up in this scenario, and this defense may work.
Mistake is another common defense. This one is used when the offender did not specifically intend to engage in a sex act. For example, if the offender responds to a call girl ad, or other service to find a date, does not necessarily equate prostitution. Being in a location known for prostitution, or a massage parlor that gets busted for prostitution, also does not mean the offender is a prostitute. In these instances, the offender can claim it was a mistake, and that they simply happened to be in the wrong place at the wrong time, or that they never intended to engage in prostitution.
Insufficient evidence is a claim that there is not enough evidence to support the charge of prostitution. Insufficient evidence can mean that there is inadequate evidence in many forms, such as:
- There wasn’t a definite and clear agreement, only an ambiguous conversation
- If there was an agreement to have sex, but no agreement that the offender would receive money or other consideration for it
- When there was a verbal agreement to have sex, but the actual sexual act didn’t take place
- A contention that the solicitation was a joke and the offender never intended to engage in sexual activity
Lack of trustworthy evidence
Lack of trustworthy evidence isn’t a valid defense in every state. In some states, however, when there is no recovered evidence that the offender agreed to engage in prostition, the lack of trustworthy evidence may be used. In those states, the undercover officer is wired, but if he or she doesn’t record the conversation between the officer and the pimp or prostitute, lack of trustworthy evidence can be claimed. Because the jury cannot hear the actual conversation for themselves, and therefore cannot actually know what took place, they may be reluctant to agree that it was prostitution.
Legal impossibility can be alleged when the intended acts don’t amount to a crime. It is typically used in sexual acts engaged in through electronic media. An example would be if an undercover officer poses as a fictitious minor, and the offender engages in sexual conversations with that fictitious minor. Because the minor is not a real person, it would be legally impossible to engage in prostitution with that minor, therefore, there is no crime.
Being a human trafficking victim
Being a human trafficking victim can also be a clear defense against a prostitution charge. Traffickers often use threats and/or violence to force their victims to comply, and this would create a defense similar to duress: the victim had no choice but to engage in the act of prostitution, and thus, is not accountable for their actions.
It’s important to discuss each individual case with a lawyer to determine which defense would be most effective, rather than trying to figure it out alone. A quality lawyer will figure out the best defense and help you understand how to prove it.