Is Prostitution Ever Legal in California?

Posted on August 10, 2022

Prostitution (as well as soliciting prostitution) is illegal throughout the state of California. Both engaging in and soliciting prostitution are misdemeanor offenses that carry up to 6 months in jail, and $1,000 in fines.

A law recently went into effect that protects the rights of sex workers, but it did not legalize the acts of buying or selling sex.

However, it is no longer a crime in California to loiter with an intent to commit prostitution.

Is prostitution legal in California?

No. Prostitution is still illegal in California. New laws that went into effect in 2020 did not decriminalize prostitution.

Prostitution is the crime of willfully engaging in sexual intercourse or a lewd act with someone else in exchange for money or something else of value.¹

A lewd act is any sexual activity or contact between a prostitute and a customer that involves the following body parts, and is done for the purpose of either sexual arousal or gratification:

• genitals,
• buttocks, or
• female breast.²

The payment that is made does not have to go to the person who is performing the sex act. It can be made to someone else, as well, such as a pimp.³ It can be money or anything else of value, including drugs.

Under the language of the California statutes, both the sex worker and their customer are engaged in an act of prostitution. This means that they can both be charged with the crime of prostitution.⁴

Prostitution is still considered a criminal act in California. A new law that recently went into effect did not decriminalize it. Anyone charged with this offense should consider establishing an attorney-client relationship with a California prostitution attorney.

What about the new laws dealing with prostitution?

Senate Bill 233

California Senate Bill 233, or SB 233, was signed into law on July 30, 2019.⁵ It went into effect on January 1, 2020. SB 233 made 2 important changes to prostitution law in the state. It:

1. immunizes people from prosecution of certain sex offenses if they are reporting certain other offenses to law enforcement, and
2. states that the possession of condoms could no longer be used as probable cause to arrest someone for prostitution.

SB 233 immunizes people from criminal charges if they report certain crimes to law enforcement that, in doing so, would make that person confess to certain drug or sex offenses. It protects people who report being a victim of, or being a witness to, the following criminal offenses:

• any serious felony,
• certain serious types of assault, including:
  • assault with a deadly weapon (Penal Code 245(a)(1) PC),
  • assault with a firearm (Penal Code 245(a)(2) PC), and
  • assault by means likely to produce great bodily injury (Penal Code 245(a)(4) PC),
• domestic violence causing a corporal injury (Penal Code 275.5 PC),
• extortion (Penal Code 518 PC),
• human trafficking (Penal Code 236.1 PC),
• sexual battery (Penal Code 243.4 PC), or
• stalking (Penal Code 646.9 PC).

Anyone who reports one of these offenses is immunized from arrest for the following crimes:

• a misdemeanor drug offense,
• creating or maintaining a public nuisance (Penal Code 372 PC),
• engaging in lewd conduct (Penal Code 647(a) PC), and
• engaging in, or soliciting, prostitution (Penal Code 647(b) PC)

This part of the new law protects sex workers who have seen or experienced a serious crime. Before SB 233 was passed, reporting the offense would involve incriminating themselves. This dilemma had put sex workers in a vulnerable position. Other people knew that sex workers were unlikely to report a crime out of fear of facing prostitution charges. This had made sex workers ripe targets for illegal activities. It also made it easier for other criminal enterprises, especially those involved in sex trafficking, to function.

SB 233 also prevents law enforcement from using condoms to support probable cause to arrest someone for:

• public nuisance, or
• soliciting or engaging in lewd conduct or prostitution.

Before SB 233 was passed, police used to use condoms as a reason to suspect that someone was a prostitute. They used to claim that it was proof that the suspect was a sex worker. This deterred people, regardless of whether they were actually a sex worker, from carrying condoms on their person. This increased the risk of transmitting sexually transmitted diseases.

Without condoms to support an arrest, it may leave law enforcement with insufficient evidence to secure a conviction.

Senate Bill 357

California recently passed Senate Bill 357 (or SB 357), repealing the California law that prohibited loitering with an intent to commit prostitution.

In addition to decriminalization, SB 357 lets people with prior loitering convictions to petition the court to have this offense dismissed and sealed from their record.

Prior to the passage of SB 357, people could be convicted of a misdemeanor for loitering in a public place in order to engage in prostitution. Suspects could break the law even if they never actually engaged in a sex act for payment.

Convictions for loitering with intent to commit prostitution carried up to 6 months in jail and a fine of up to $1,000.⁶

What are the penalties of a conviction?

In the state of California, prostitution is a misdemeanor sex crime. A first offense carries up to:

• 6 months of jail time, and
• $1,000 in fines.

Prostitution is a priorable offense. This means that subsequent offenses carry higher penalties, including mandatory minimums of:

• 45 days in county jail for a second offense, and
• 90 days in county jail for a third or subsequent offense.⁷

If the offense happened in a car or motor vehicle and near a residence, it can lead to a driver’s license suspension.⁸

However, a conviction for prostitution does not trigger an automatic sex offender registration in California.

Both the sex worker and his or her customer can be liable for prostitution. This makes it essential for all parties involved to get the legal advice of a criminal defense lawyer.

What about solicitation?

Solicitation is a similar offense to prostitution. While prostitution covers the sexual act and payment, solicitation covers the request to engage in prostitution. Specifically, in California, solicitation is the crime of:

• requesting someone else to engage in an act of prostitution,
• intending to engage in an act of prostitution with that other person, and
• that other person receiving the request.⁹

SB 233 covers both solicitation and prostitution. Because of the new law, police officers cannot use condoms to establish probable cause to arrest someone for solicitation. People who report an eligible criminal offense are also immune from prosecution for solicitation.

What are some legal defenses?

A criminal defense attorney can help defendants raise the following legal defenses to a prostitution accusation:

• the defendant was the victim of police entrapment,
• there is insufficient evidence to prove the case beyond a reasonable doubt, or
• there was a lack of intent to solicit or engage in prostitution.

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