Penal Code 647b is a section of California law that prohibits engaging in or soliciting prostitution. Specifically, it makes it a criminal offense to engage in any sexual act in exchange for money or other compensation, or to offer or agree to engage in such activity.
Violations of Penal Code 647b can result in fines, imprisonment, and other penalties, and may also lead to other charges such as pimping or pandering.
- a man offering drugs to a woman in exchange for a “blow job.”
- a woman allowing a man to fondle her breasts in exchange for money.
- a police officer accepting a woman’s offer to have sex in exchange for not writing her a traffic ticket.
Criminal defense lawyers draw upon several legal strategies to contest solicitation and prostitution charges. A few common ones include showing that:
- there is a lack of evidence to support a conviction,
- you were entrapped,
- you were falsely accused, and/or
- no willfulness
The crime is punishable by:
- up to six months in jail time, and/or
- a fine of up to $1,000.
Our California criminal defense attorneys will explain the following in this article:
- 1. How does California law define “prostitution” and “solicitation”?
- 2. Are there legal defenses to PC 647b charges?
- 3. What are the penalties?
- 4. Are there related offenses?
- 5. Are there efforts in California to legalize prostitution?
- 6. How does the passage of Senate Bill 233 protect sex workers?
1. How does California law define “prostitution” and “solicitation”?
California Penal Code 647b prohibits three types of acts:
- engaging in an act of prostitution,
- soliciting an act of prostitution, and
- agreeing to engage in an act of prostitution.1
For purposes of all of these acts, “prostitution” is where you have sexual intercourse or perform a lewd act with someone else in exchange for
- money or
- other compensation.
A “lewd act” or “lewd conduct” means touching a person’s genitals, buttocks, or female breast for the purpose of
- sexual arousal or
- sexual gratification.2
1.1. Engaging in an act of prostitution
You engage in prostitution if you:
- willfully engage in sexual intercourse or a lewd act with someone else, and
- do so in exchange for money or other compensation.3
In the State of California, willfully means you engaged in the act willingly or on purpose. It does not require a specific intent to break the law.4
1.2. Soliciting an act of prostitution
Under California law, you solicit prostitution when you:
- request that another person engage in an act of prostitution, and
- do so with the intent to engage in an act of prostitution with the other person.5
To be guilty of solicitation, you must have clearly intended to engage in an act of prostitution.
The following are not acts showing a clear intent to commit prostitution:
- being present in a known area of prostitution,
- waving to a passing vehicle,
- nodding to a stranger, or
- standing on a street corner in a miniskirt.6
Example: Katrina is a police officer participating in a series of undercover prostitution sting operations. She puts on provocative clothing and stands on a street corner where prostitutes are known to gather.
Frank drives by Katrina several times and then pulls over. He offers Katrina $200 to have sex with him and shows her the cash. Frank’s actions clearly indicate his intent to initiate a prostitution transaction.
But if Frank had just propositioned Katrina on a dare from his friends, then he is not guilty of solicitation. This is because he acted out of a dare and did not intend to act in furtherance of trading sex for money.
1.3. Agreeing to engage in prostitution
Under PC 647b, a prosecutor has to prove the following to successfully secure a conviction for “agreeing” to engage in prostitution:
- you agreed to engage in an act of prostitution with someone else,
- you intended to engage in an act of prostitution with that person, and
- you did something to further the commission of an act of prostitution.7
As to the third element, this extra “something” is more than just accepting a solicitation.8
- handing over the agreed-upon payment,
- withdrawing money from an ATM in order to pay the other person,
- driving to an agreed-upon location where the sexual activity will take place,9 or
- instructing a customer who has accepted a solicitation to undress.10
2. Are there legal defenses to PC 647b charges?
In solicitation and prosecution cases, you can challenge allegations with a legal defense. Four common defenses include showing that:
- there is insufficient evidence to support a California prostitution or solicitation charge.
- law enforcement entrapped you.
- you were falsely accused.
- there was no willfulness.
2.1. Insufficient evidence
Insufficient evidence means that a prosecutor has only part of the evidence needed for a solicitation or prostitution conviction. Only part of the evidence means that a jury will have reasonable doubt that you committed a crime. For example, in a solicitation case, maybe a prosecutor:
- can show that you requested another person to engage in prostitution, but
- cannot show that you intended to engage in an act of prostitution.
Claiming entrapment can be used as a defense when you are charged with the crime of prostitution or solicitation after an undercover sting. Entrapment means that the police used some type of overbearing conduct to trick you into committing a crime you were not predisposed to commit. The defense works so long as you show that you only committed a PC 647b offense because of the undercover police officer’s entrapment.
(Other types of law enforcement misconduct that may serve as a defense include illegal searches and seizures and coercing confessions.)
2.3. Falsely accused
Unfortunately, people get falsely accused under this statute all of the time. A person may falsely accuse you of prostitution/solicitation out of jealousy or payback, or perhaps you were the victim of mistaken identity. No matter the specific reason though, you can always use a defense that you were unjustly blamed.
2.4. No willfulness
A sex act counts a prostitution only if you willfully did it knowing that it was in exchange for money or other favors. If you thought there was no money involved, then you committed no crime:
Example: Jackie hits on Bill at a nightclub. Jackie tells Bill to come back to her place “for a good time”, and they have sex. Afterwards Jackie asks for her payment, and Bill is confused – he thought she genuinely liked him and that she was not a sex worker. Even if Bill pays Jackie to avoid a confrontation, he committed no crime because he did not willfully engage in prostitution.
3. What are the penalties?
Under California’s solicitation and prostitution laws, a conviction under PC 647b is a misdemeanor offense.
A first-time offense under the statute is punishable by:
- custody in county jail (as opposed to state prison) for up to six months, and/or
- a fine of up to $1,000.11
Penalties for a second or subsequent offense include:
- a mandatory minimum 45 days in county jail for a second offense, and
- a mandatory minimum of 90 days in county jail for a third offense.12
The judge may also suspend your driver’s license for up to 30 days if the case involved an automobile and happened within 1,000 feet of a home.13
Note that a conviction of some California sex crimes or sex acts will result in you having to register as a sex offender under Penal Code 290. Though neither prostitution nor solicitation requires mandatory sex offender registration.
4. Are there related offenses?
There are five crimes related to solicitation and prostitution. These are:
- human trafficking – PC 236.1,
- pimping – PC 266h,
- pandering – PC 266i,
- loitering with the intent to commit prostitution – PC 653.22 (now repealed),
- supervising or aiding a prostitute – PC 653.23,
- indecent exposure – PC 314, and/or
- lewd conduct – PC 647(a)
4.1. Human trafficking – PC 236.1
Per Penal Code 236.1, human trafficking is the crime where you:
- deprive someone of their personal liberty, and
- do so with the intent to violate certain California laws regarding commercial sexual activity and the sexual exploitation of children.
Unlike violations of PC 647b, violations of this law are always charged as a felony. Depending on the facts of the case, the crime can be punished by a life sentence in state prison.
4.2. Pimping – PC 266h
Per Penal Code 266h, pimping is the crime where you receive all or part of the revenue from another person’s work as a prostitute.
As with prostitution and solicitation charges, you can contest charges under this statute with an entrapment defense.
4.3. Pandering – PC 266i
Under Penal Code 266i, pandering is the crime where you attempt to influence someone to become or remain a prostitute.
California law treats this crime more seriously than prostitution or solicitation. Pandering is a felony offense punishable by up to six years in state prison.
4.4. Loitering with the intent to commit prostitution – PC 653.22 (now repealed)
Prior to July 2022, Penal Code 653.22 made it a California crime to loiter in a public place with the intent to commit prostitution. You could be cited or arrested simply for being in a public place even if:
- no offer to exchange sex for money took place; or
- no sex acts actually occurred.
The penalties for loitering were the same as the penalties for a PC 647b violation:
- up to 6 months in county jail and/or
- a fine of up to $1,000.
Enforcing PC 653.22 unfairly targeted people of color and transgender people. As of July of 2022, it is no longer a crime to “loiter with intent to commit prostitution.” However, prostitution itself remains illegal.
Since loitering with intent to commit prostitution is no longer illegal, if you have past PC 653.22 convictions on your record, you can petition the court to dismiss the case and seal it from your criminal record.14
4.5. Supervising or aiding a prostitute – PC 653.23
Under Penal Code 653.23, supervising or aiding a prostitute is the crime where you direct, supervise, recruit, or help someone else in committing:
- solicitation, or
- loitering to commit prostitution.
For purposes of this statute, the terms “prostitution” and “solicitation” carry the same definitions as used under PC 647b.
4.6. Indecent exposure – PC 314
Under Penal Code 314, indecent exposure is willfully exposing your naked body or genitals in public to others who would be offended or annoyed by it.
A first-time conviction is typically a misdemeanor, and a successive conviction is a felony. A conviction also carries the requirement to register a sex offender.
4.7. Lewd conduct – PC 647(a)
Under Penal Code 647(a), lewd conduct is defined as touching your own or another person’s privates, backside, or female breasts in public for sexual gratification and when you know (or should have known) others were present who would be offended.
Lewd conduct in public is a misdemeanor, and sex offender registration is not required.
5. Are there efforts in California to legalize prostitution?
There are current efforts in California to legalize prostitution.
For example, the California Senate recently passed Senate Bill 357, which repealed PC 653.22 (loitering with the intent to commit prostitution).
The legislature is thinking about legalizing prostitution in order to better combat the offense of human trafficking. The reasoning here is that the legalization of prostitution would mean that pimps could no longer use fear of arrest to help keep trafficking victims attached to committing sexual acts.15
Other states are also contemplating legalizing prostitution, including the states of Maine and Oregon.
6. How does the passage of Senate Bill 233 protect sex workers?
As of 2020, police can no longer use the fact that you are carrying condoms to form probable cause that you are a prostitute and then arrest you for
- loitering, or
- public nuisance.
Now that condoms can no longer be used as evidence of probable cause, this may cut down on the number of prostitution arrests. Plus you do not have to fear that carrying condoms will incriminate you.
In addition, SB 233 immunizes you from certain low-level criminal charges when you report serious crimes to the police. In the past, sex workers who were victims of – or who witnessed – serious crimes may have avoided calling the police out of fear they would be prosecuted themselves for either:
- a misdemeanor drug offense,
- engaging in, or soliciting, prostitution (Penal Code 647(b) PC),
- loitering with intent to commit prostitution (Penal Code 653.22 PC),
- creating or maintaining a public nuisance (Penal Code 372 PC), and
- engaging in lewd conduct (Penal Code 647(a) PC).
Now, you are protected from being charged with any of the above crimes when you report either:
- any serious felony,
- certain serious types of assault, such as:
- human trafficking (Penal Code 236.1 PC),
- sexual battery (Penal Code 243.4 PC),
- stalking (Penal Code 646.9 PC),
- domestic violence causing a corporal injury (Penal Code 275.5 PC), or
- extortion (Penal Code 518 PC).
This new law gives you a greater incentive to report pimps and johns who may be abusing you or others.16
- California PC 647b PC. See also CALCRIM No. 1154 – Prostitution: Soliciting Another. Judicial Council of California Criminal Jury Instructions (2020 edition). See also: People v. Saephanh (2000) 80 Cal.App.4th 451; Leffel v. Municipal Court (1976) 54 Cal.App.3d 569.
- CALCRIM No. 1154. See also: Pryor v. Municipal Court (1979) 25 Cal.3d 238; People v. Hill (1980) 103Cal.App.3d 525; Wooten v. Superior Court (2001) 93 Cal.App.4th 422; People v. Davis (1988) 201 Cal.App.3d Supp. 1; People v. Norris (1978) 88 Cal.App.3d Supp. 32; People v. Love (1980) 111 Cal.App.3d Supp.1; People v. Dell (1991) 232 Cal.App.3d 248. See also PC 315.
- CALCRIM No. 1153.
- California Penal Code 7(1) PC.
- CALCRIM No. 1154. See also People v. Superior Court (1977) 19 Cal.3d 338, and People v. Mecano (2013) 214 Cal.App.4th 1061.
- In re White (1979) 97 Cal.App.3d 141.
- CALCRIM 1155 – Prostitution: Agreeing to Engage in Act.
- See same.
- In re Cheri T. (1999) 70 Cal.App.4th 1400.
- Kim v. Superior Court (2006) 136 Cal.App.4th 937.
- California Penal Code 19 PC.
- California Penal Code 647 k PC.
- See same.
- SB 357 (2022). Brooke Migdon, California governor rolls back law criminalizing ‘loitering for the intent to engage in sex work’, The Hill (July 5, 2022).
- See “California, Other States Eye Reduced Penalties for Prostitution to Fight Sex Trafficking,” JW August, Times of San Diego, July 18, 2021.
- California Senate Bill 233 (2019).