Defenses to Prostitution
There are a number of defenses to prostitution, namely:
- No offer of sex;
- No exchange of anything of value in exchange for sex.
- A misunderstanding.
A good defense is not only in the possibility of having a defense but having a defense strategy. You are innocent until proven guilty beyond a reasonable doubt, and a good defense strategy aims to weaken the State’s case against you.
Penalties for Prostitution
Prostitution is a Class 3 misdemeanor. Accordingly, the penalties can include:
- Fines between $50 and $750; and/or
- Jail up to 6 months for a first offense.
You will also be required to pay a fine that will be contributed to Colorado’s prostitution enforcement cash fund.
There are many crimes associated with prostitution and many that are charged in lieu of or alongside prostitution. These related offenses may include:
A prostitution offense should not be taken lightly even though attitudes toward it are changing. At Colorado Legal Defense Group, our criminal defense attorneys want you to be aware of the risks that a prostitution conviction poses so that you can make informed decisions about what you do next. Below, we provide answers to your most common questions related to this offense. If you still have questions or want comprehensive, smart legal representation, contact our office to learn more.
- 1. What does the Colorado offense of Prostitution mean?
- 2. Are there any defenses to a charge of prostitution in Colorado?
- 3. What are the penalties for a prostitution conviction in Colorado?
- 4. Are there any alternatives to a prostitution conviction in Colorado?
- 5. Can a prostitution record be expunged in Colorado?
- 6. Are there any licensed brothels in Colorado?
- 7. Have there been efforts to legalize prostitution in Colorado?
- 8. Related Offenses
Prostitution is defined in the Colorado Revised Statutes (CRS) in section 18-7-201. The code states it is unlawful for any person to:
- offer, or
- agree to perform
any of the following acts with another person who is not the spouse of the latter person in exchange for money or another item of value:
- sexual intercourse,
- masturbation, or
- anal intercourse.1
The same section of the code defines the above acts in the following language:
- Fellatio “means any act of oral stimulation of the penis.”2
- Cunnilingus “means any act of oral stimulation of the vulva or clitoris.”3
- Masturbation “means stimulation of the genital organs by manual or other bodily contact exclusive of sexual intercourse.”4
- Anal intercourse “means contact between human beings of the genital organs of one and the anus of another.”5
Prostitution is not only a sex crimes offense, but it has been found by the courts to be a crime involving moral turpitude.6
The U.S. Congress has never defined the term “moral turpitude” nor has the State of Colorado. For lack of a legislative definition, one of the most commonly used definitions used by by the courts if one taken from Black’s Law Dictionary. According to this definition, moral turpitude is an:
act of baseness, vileness, or the depravity in private and social duties which man owes to his fellow man, or to society in general, contrary to the accepted and customary rule of right and duty between man and man …. Act or behavior that gravely violates moral sentiment or accepted moral standards of community and is a morally culpable quality held to be present in some criminal offenses as distinguished from others …. The quality of a crime involving grave infringement of the moral sentiment of the community as distinguished from statutory mala prohibita.7
A crime involving moral turpitude is not a crime you can be charged with. It is a catch-all phrase for a number of crimes, all of which supposedly shock the public conscience due to the inherent vileness or depravity and the one committing it supposedly did so out of some kind of evil intent or recklessness. Crimes of moral turpitude can range from petty offenses to felonies in the State of Colorado.
A conviction of a crime involving moral turpitude can impact your life in many ways. For most of us, we tend to think of immigration and CIMTs, but there are other ways a CIMT can impact your life, and one of the most important ways is its impact on your career.
Immigration and CIMT
If you are convicted of a crime, like prostitution, that has been confirmed by the courts as a crime involving moral turpitude, then it can impact your immigration status in two ways:
- it can cause a person with a U.S. visa or green card to be removed from the United States, or
- it can prevent a person with a green card from demonstrating “good moral character,” a requirement necessary to be eligible for U.S. citizenship.
Thus, if you are a green card holder or are anticipating applying for a green card — or for that matter a U.S. visa — your application may be denied if you have been convicted of prostitution or a prostitution-related offense.
Furthermore, if you are convicted of prostitution in Colorado within five years of your most recent admission to the United States and the sentence is longer than one year, you could face deportation after completion of the sentence.
Careers and CIMT
Deportation is not your only risk. For those of you who do not have to worry about green cards and U.S. visas, you still have to think about your careers. A crime of moral turpitude is cause for many professionals to lose their professional licenses temporarily or permanently. Some professions that may suspend, revoke, or deny altogether your license, license renewal, or license application include:
- Medical professions
- Nursing professions
- Real estate
- Massage therapy
- And many more.8
Losing your license can have a huge impact on the quality of life you live. Losing your livelihood can mean losing more than just income, but losing your reputation among family, friends, peers, and the community — and for some, that can mean more than anything else.
There are defenses to a charge of prostitution, so pleading guilty because you were caught “red-handed” is not your best option. You should alway plead not guilty — at least at the arraignment — so that you and your attorney can review all options and determine the best path for you. By pleading guilty immediately, you deny yourself the ability to defend yourself. And in Colorado, you can defend yourself against a charge of prostitution.
Common defenses in prostitution cases include:
- You did not offer sex in the form of any of the acts above-listed.
- You did not ask for anything of value in exchange for sex.
- You did not offer anything of value in exchange for sex.
- There was a misunderstanding.
- You were entrapped by the police and did something that you would not have normally done but for the influence of the police. Often entrapment is the result of a sting operation set up by the police, and these sting operations can happen online just as much as they do on location.
But the defense does not stop there. The prosecutor must prove the elements of the offense in order to successfully convict a person of prostitution. An accusation is not enough. An offer of sex is not enough. Both parties must have agreed to the transaction of sex for something of value.
Each case has different variables or circumstances, so the defense must be developed based on each individual case. In some instances, the police may have acted out of line or without probable cause. In other cases, the evidence may be lacking. Depending on either of these variables, motions can be filed with the court to suppress evidence or to dismiss the case. In some circumstances, you may have been acting under threat, coercion, or violence. You may have even been a victim of human trafficking.
Thus, as mentioned, a defense is wholly dependent on the circumstances and facts of each individual case. The important thing to remember is: you are innocent until proven guilty beyond a reasonable doubt. And our attorneys at Colorado Legal Defense Group will hold the prosecutor, judge, and jury accountable to this legal concept.
Prostitution in Colorado is a Class 3 misdemeanor. And the police are generally serious about arresting persons suspected of prostitution. If you are arrested and subsequently arrested, as a Class 3 misdemeanor, you can expect the following penalties:
- A fine between $50 and $750;
- Possible jail time of up to 6 months for a first offense.
Prostitution is a sex crimes defense, and as such, most crimes under this designation do not qualify for any type of diversion program. But these sex crimes relate to:
- Sexual assault9
- Sexual assault on a child10
- Any sexual offense committed against an at-risk adult or at-risk minor
- Any sexual offense committed with the use of a deadly weapon
- Enticement of a child11
- Sexual exploitation of a child12
- Procurement of a child for exploitation13
- Sexual assault on a child by one in a position of trust,14 or
- Any child prostitution offense.
Prostitution involving adults in not classified as assault and does not typically involve a deadly weapon. Diversion can be made available to an alleged offender for a first-offense prostitution charge because prostitution is considered a low level sex crime. Diversion allows an individual to complete certain terms and conditions of an agreement before criminal prosecution ensues. If completed successfully, the case will be dismissed and you can petition the court to seal the arrest record. If you do not complete it successfully, criminal prosecution can begin.
If you are convicted of prostitution, you may wonder if the conviction can be expunged because — as noted above — there are serious consequences to the crime. Typically speaking, however, a crime of prostitution cannot be expunged. There are only two scenarios where it can:
- You must be able to show by a preponderance of the evidence that you had been sold, exchanged, bartered, or leased by another person in accordance with CRS 18-3-501 or CRS 18-3-502 for purposes of performing the offense; or
- You must be able to show by a preponderance of the evidence that you were coerced into committing the offense.
In either case, the court will order the record to be sealed. A petition to expunge under this subsection can also be filed immediately, meaning you do not have to wait for any amount of time before requesting the expungement.
KRDO out of Colorado Springs once reported that prostitution was practically legal in the Pikes Peak region.15 That assertion, however, is misleading and refers to a claim that the police do not actively investigate and crack down on prostitution in the region. Rather, they act only when there is a complaint of prostitution.
Prostitution is not legal anywhere in Colorado. As such, there are no licensed brothels in Colorado. The only state currently home to licensed brothels is the State of Nevada.
Yes, there have been efforts to legalize prostitution in Colorado and those efforts are ongoing. The reasons for legalization are many but circle around two basic concepts:
- The right to our own bodies; and
As to the first reason, the argument is simple: it is your body and no one should be able to legislate what you do with you own body. Sex is no longer taboo as it once was, and that goes for the act of prostitution. Though it still remains an act that many believe is immoral, but many more people believe it is not, and those persons in the latter group is growing.
As for safety, it encompasses many issues: from the safety of the prostitute to the safety of the solicitor to the general public’s safety, such that:
- A Colorado Springs study recently reported that prostitutes in Colorado Springs were 18 times more likely to be murdered than non-prostitutes of their like age and race.16
- Decriminalizing prostitution and regulating it would mean the regular testing for sexually transmitted diseases, like HIV, syphilis, gonorrhea, and chlamydia, like those regulations carried out in Nevada.17 That means, to some extent, the prostitute stays healthy, the person soliciting and engaging in prostitution stays healthy, and the latter person’s family stays healthy.
- Decriminalization of prostitution can have a positive impact on public health and safety. The Chicago Policy Review discusses important studies identifying the link between decriminalization its impact on public health and safety as well as the alternative: criminalization and its impact on public health and safety. The results of the review indicate decriminalization is better for society as much as it is better for those involved in prostitution.18
In light of these and many other arguments, the effort to decriminalize prostitution and rethink it as sex work and not a crime is ongoing and very active throughout Colorado. In fact, there is a live petition on thepetitionsite.com website calling upon Colorado to decriminalize prostitution, noting the
2018 federal court decision in ESPLERP v GASCON 16-15927, the Ninth Circuit Court of Appeals that said it was the state legislators responsibility to repeal bad laws like 18-7-205(1) C.R.S. the CO anti-prostitution law. 19
Though society is having this discussion on decriminalizing sex work, it has only been discussed by lawmakers in a handful of states, like New Hampshire, Hawaii, and Massachusetts.20 In Colorado, the Libertarian Party has advocated for the decriminalization of prostitution,21 but to date, there have been no efforts legally by lawmakers to decriminalize prostitution in Colorado.
Prostitution is one offense among many in the same line of criminal activity. Some related offenses that are often charged simultaneously or in lieu of prostitution include:
- Patronizing a prostitute
- Keeping a place of prostitution
- Pimping, and
Below is a general overview of these prostitution-related offenses.
Soliciting a prostitute in Colorado is unlawful and occurs when a person:
- Solicits another person for prostitution; or
- Arranges or offers to arrange a meeting for prostitution purposes; or
- Directs another person to a place knowing that this instruction is for prostitution purposes.22
Soliciting a prostitute in Colorado is a misdemeanor with the same comparable penalties as those associated with prostitution:
- a fine between $50 and $750; and/or
- jail of up to 6 months.
In addition, if you are convicted of soliciting a prostitute, you will also be ordered to pay a fine of up to $5,000 to be contributed to the State’s prostitution enforcement cash fund.23
Patronizing a prostitute occurs when any person who performs any of the following with a person who is not his or her spouse:
- engages in an act of sexual intercourse or of deviate sexual conduct with a prostitute; or
- enters and/or remains in a place of prostitution with intent to engage in sexual intercourse or deviate sexual conduct.24
Patronizing a prostitute is a Class 1 misdemeanor, which means a person can anticipate the following penalties:
- a fine between $500 and $5,000; and/or
- jail time between 6 and 18 months.
In addition, if you are convicted of patronizing a prostitute, you will also be ordered to pay a fine of up to $5,000 to be contributed to the State’s prostitution enforcement cash fund.
Keeping a place of prostitution occurs when any person who:
- has or exercises control over a place that offers seclusion or shelter for the practice of prostitution; and
- Performs any one of the following:
- knowingly grants or permits the use of the place for prostitution purposes; or
- permits the place to be continually used for prostitution purposes even after the person is aware of the fact or should reasonably know the same.25
Keeping a place of prostitution is a Class 2 misdemeanor that can result in the following penalties:
- a fine between $250 and $1,000; and/or
- jail between 3 and 12 months.
Pimping is a crime in Colorado and occurs when a person knowingly:
- lives on,
- is supported by, or
- maintained in whole or in part
by money or another thing of value
- procured, or
by another person through prostitution.26
Pimping is a Class 3 felony and can result in the following penalties:
- a fine between $3,000 and $750,000; and/or
- state prison between 4 and 12 years.
Pimping of a child will result in tougher penalties and a requirement to register as a Colorado sex offender.
Pandering is a crime in Colorado and occurs when a person take money to arrange for someone to hire a prostitute.27 Depending on the circumstances, the crime can be charged as either a Class 5 felony or a Class 3 misdemeanor.
A Class 3 misdemeanor is punishable by
- jail of up to 6 months; and/or
- a fine of up to $750; and
- an additional fine to be paid to the prostitution enforcement cash fund of no less than $5,000 and not more than $10,000.
A Class 3 felony is punishable by:
- state prison of up to 12 years; and/or
- a fine of up to $750,000; and
- an additional fine to be paid to the prostitution enforcement cash fund of no less than $5,000 and not more than $10,000.
Call us for help…
If you were charged for prostitution or a prostitution-related crime, please contact us at Colorado Legal Defense Group. We know the laws. We know the system. We know criminal defense of sex crimes, including those crimes involving prostitution and prostitution-related offenses.
Colorado defense attorneys have many years of experience representing clients who have been charged with prostitution and related offenses. We are among the best Colorado criminal defense attorneys to call. We are located in Denver but represent clients throughout the greater Denver metropolitan area and throughout Colorado. Contact us today for a free consultation by phone or in-person or in our Denver law office.
- CRS 18-7-201. Prostitution prohibited.
- CRS 18-7-201(2)(a).
- CRS 18-7-201(2)(b).
- CRS 18-7-201(2)(c).
- CRS 18-7-201(2)(d).
- R & F Enters., Inc. v. Bd. of County Comm’rs, 199 Colo. 137, 606 P.2d 64 (1980).
- Brian C. Harms, Redefining “Crimes of Moral Turpitude”: A Proposal to Congress, 15 GEO. IMMIGR. L.J. 259, 264 (2001)(quoting BLACK’S LAW DICTIONARY 1008-09 (6th ed. 1990)); see also Smith, 420 F.2d at 431 (utilizing Black’s Law Dictionary to define moral turpitude).
- See for example, Department of Regulatory Agencies, Colorado Medical Board, Rule 380 – Reporting Requirements for Criminal Conviction.
- CRS 18-3-402. Sexual assault.
- CRS 18-3-405. Sexual assault on a child.
- CRS 18-3-305. Enticement of a child.
- CRS 18-6-403. Sexual exploitation of a child – legislative declaration – definitions.
- CRS 18-6-404. Procurement of a child for sexual exploitation.
- CRS 18-3-405.3. Sexual assault on a child by one in a position of trust.
- James Jarman. “Prostitution Practically Legal in Pikes Peak Region.” KRDO. Target 13. Last updated July 14, 2016.
- John J. Potterat, Devon D. Brewer, Stephen Q. Muth, Richard B. Rothenberg, Donald E. Woodhouse, John B. Muth, Heather K. Stites, Stuart Brody; Mortality in a Long-term Open Cohort of Prostitute Women, American Journal of Epidemiology, Volume 159, Issue 8, 15 April 2004, Pages 778–785, https://doi.org/10.1093/aje/kwh110.
- NRS 441A.800. Testing of sex workers; prohibition of certain persons from employment as sex worker.
- Anne Gunderson. “The Effect of Decriminalizing Prostitution on Public Health and Safety.” Chicago Policy Review. February 26, 2018.
- Colorado Care2 Petitions. Colorado Must Decriminalize Prostitution in Light of FOSTA/SESTA.
- Alison Bass, Contributor. “Are We Finally Ready to Decriminalize Sex Work? One New Hampshire Legislator Thinks So.” Updated January 8, 2017. See also, Tribune News services. “Hawaii lawmakers consider bill that would legalize prostitution industry.” The Chicago Tribune. February 3, 2017; Andy Metzger State House News Service. “Prostitution bill would legalize sex work, sponsor says.” The Salem News. November 28, 2017.
- Michael Roberts. “The Argument for Decriminalizing Prostitution.” Westword. March 22, 2017.
- CRS 18-7-202. Soliciting for prostitution.
- CRS 24-33.5-513. Prostitution enforcement resources grant program – application process – cash fund – reports – rules – repeal.
- CRS 18-7-205. Patronizing a prostitute.
- CRS 18-7-204. Keeping a place of prostitution.
- CRS 18-7-206. Pimping.
- CRS 18-7-203. Pandering.