Defenses for Solicitation of Prostitution Felony Charges
Posted on by Michael Lowe.
Arrested for Buying Sex in Texas: Serious Consequences
In Texas, anyone arrested for buying sex – or trying to buy sex even if there’s no actual payment or no sex involved – faces a felony conviction with serious time behind bars. Texas was the first state in the nation to boost the crime from a misdemeanor charge to a felony arrest. This is a big deal.
Anyone arrested for this sex crime needs a criminal defense lawyer who can work with them on building a multi-faceted defense strategy as soon as possible. Felony sentences are serious. Each case is different, and defenses will be unique to its specific circumstances.
The Reality of A Sex Crime Arrest: Social Stigma, Life Changing Consequences
Getting cuffed and booked is far from the only consequence when a john is busted. Experienced sex crime defense attorneys see time and again how lots of lives are dramatically altered just by the arrest itself. It happens fast.
Buying sex comes with a stigma. People talk. People judge.
Think about children, parents, grandparents, spouses, significant others, bosses, college admissions boards, professional memberships, neighbors, friends, etc. The news of someone being arrested for the sex crime of soliciting sex can hurt the accused and lots of other people.
How will they find out? There are no secrets here. Criminal cases are public records stored with the clerk’s office and uploaded online. Anyone searching for the accused’s name on the county database – even years in the future – will be able to learn all about the sex crime charges. These records are free to the public and always available (for instance, check out the Dallas County database or the Tarrant County online records).
It can get worse. Many of Texas’ solicitation of prostitution charges are part of a task force operation. There can be dozens of arrests made at the same time in one of these “John Stings.” Then come the press releases, naming the people who were caught in the sting. Sometimes they publish photographs, too. These things are publicized as a public deterrence and as public confirmation that law enforcement is on the job.
A simple Google search of someone’s name — without even bothering to enter a criminal records database – can provide all sorts of details about the accused. This can be devastating: family members can find out; class reunion committees can discover the news release; loving relationships can be destroyed by the discovery in a simple search result. An example: a March 2024 Dallas Police Department news release naming thirty (30) people arrested in their solicitation of prostitution sting.
Anyone who has been busted for buying sex, formally charged as violating the criminal statute found in Texas Penal Code §43.021 entitled “Solicitation of Prostitution,” needs a defense lawyer who not only understands the intricacies of a sound legal defense strategy but the need to deal with the practical realities that come with these types of charges.
An experienced Texas sex crimes defense attorney will not only understand the ramifications of the arrest, but will have practical suggestions on how to minimize its very real impact on someone’s life – even if the formal charges are completely dropped and the case dismissed. The sad truth is that anyone arrested on a sex crime charge suffers immediate harm just because of the arrest itself.
For more, read Unjustly Accused of Sexual Assault: When Rape Allegations Aren’t True There’s Still a Victim and Loss of Privacy and Arrest in Texas: Hurting Your Job, Your Relationships, Your Life.
Protecting Constitutional Rights of the Accused
One of the passions of most experienced criminal defense lawyers is to make sure that the government is not overstepping its bounds as defined within the state and federal constitutions. The constitutional rights of the accused must be paramount, regardless of the taboo nature of a crime; the criminal record of the defendant; or the public outcry involved. This is key to our entire system of government.
Accordingly, as part of any criminal defense matter but especially solicitation of prostitution, the defense lawyer will be meticulous in going over the investigation, targeting, arrest, and prosecution of the defendant to make sure that there have been no constitutional violations.
For instance, was there an unlawful search and seizure here? An illegal wiretap? Then there be a violation of the Fourth Amendment protections against unlawful search and seizure and the resulting evidence can be suppressed with a motion to the court. Another scenario: digital evidence (think chat logs, recording of phone calls or texts, etc.) was not collected, or was improperly collected and stored in the chain of evidence. Failure to protect and preserve evidence is a violation of constitutional due process.
Elements of the Statute: What the Prosecutor Has to Prove for a Conviction
Texas Penal Code §43.021 became effective in September 2021 with amendments effective in 2023. The law states:
(a) A person commits an offense if the person knowingly offers or agrees to pay a fee to another person for the purpose of engaging in sexual conduct with that person or another.
(b) An offense under Subsection (a) is a state jail felony, except that the offense is:
(1) a felony of the third degree if the actor has previously been convicted of an offense under Subsection (a) or under Section 43.02(b), as that law existed before September 1, 2021; or
(2) a felony of the second degree if the person to whom the actor offers or agrees to pay the fee for the purpose of engaging in sexual conduct is:
(A) younger than 18 years of age, regardless of whether the actor knows the age of the person at the time of the offense;
(B) represented to the actor as being younger than 18 years of age; or
(C) believed by the actor to be younger than 18 years of age.
(b-1) The punishment prescribed for an offense under Subsection (a) is increased to the punishment prescribed for the next highest category of offense if it is shown on the trial of the offense that the actor committed the offense in a location that was:
(1) on the premises of or within 1,000 feet of the premises of a school; or
(2) on premises or within 1,000 feet of premises where:
(A) an official school function was taking place; or
(B) an event sponsored or sanctioned by the University Interscholastic League was taking place.
(c) A conviction may be used for purposes of enhancement under this section or enhancement under Subchapter D, Chapter 12, but not under both this section and that subchapter. For purposes of enhancement of penalties under this section or Subchapter D, Chapter 12, a defendant is considered to have been previously convicted of an offense under this section or under Section 43.02(b), as that law existed before September 1, 2021, if the defendant was adjudged guilty of the offense or entered a plea of guilty or nolo contendere in return for a grant of deferred adjudication, regardless of whether the sentence for the offense was ever imposed or whether the sentence was probated and the defendant was subsequently discharged from community supervision.
Has the State Met Its Burden of Proof?
In a criminal case, the district attorney must prove up the allegations that the defendant violated a criminal statute by establishing each and every element of that statute beyond a reasonable doubt.
The defense will look for holes in the state’s case. Have they failed to meet their burden regarding a part of the statute? Is there a lack of physical evidence for an element? Is it properly authenticated under the rules? What about any witness testimony – is it reliable or credible? See, e.g., Witness Corroboration When Defending Sexual Assault Charges in Texas and Encryption and Law Enforcement Investigations: Police Access to Encrypted Data.
This is huge part of the defense lawyer’s job, to grade the papers of the prosecutor. As the Texas Court of Criminal Appeals, the highest state criminal court, explains:
The Fourteenth Amendment’s guarantee of due process of law prohibits a criminal defendant from being convicted of an offense and denied his liberty except upon proof sufficient to persuade a rational trier of fact beyond a reasonable doubt of every fact necessary to constitute the offense. In a criminal trial, the State carries the burden of persuading the fact-finder that the defendant is guilty of the offense beyond a reasonable doubt. Evidence supporting a conviction is legally sufficient if a rational trier of fact could have found that the defendant committed each element of the offense beyond a reasonable doubt. A “mere modicum” of evidence, however, is not sufficient to rationally support a conviction beyond a reasonable doubt. Therefore, the question considered on an evidentiary sufficiency review is not whether there was any evidence to support a conviction, but whether there was sufficient evidence to justify a rational trier of the facts to find guilt beyond a reasonable doubt. In this way, legal sufficiency review ensures that the State carries its burden at trial to prove each element of the offense beyond a reasonable doubt.
Baltimore v. State, 689 S.W.3d 331, 340-41 (Tex. Crim. App. 2024) (footnotes omitted).
Was there intent?
The statute is specific. The district attorney must prove the defendant intended to exchange money for sex. Texas Penal Code §43.021(a).
Defense lawyers will look carefully at the facts that support the allegation that the defendant had the required mental state to commit the crime. Is there enough evidence here? Is it authenticated and admissible under the rules of evidence? And if so, are there additional facts that can refute the defendant knowingly or intentionally solicited sex? Or that the accused was misunderstood?
Was there an offer?
The state has to prove up with evidence that an offer was made by the accused – beyond a reasonable doubt. Texas Penal Code §43.021(a).
Are there facts that can show this was just flirting, suggestive language, or simple conversation? Maybe there was just a miscommunication.
Do they have the right person?
Mistakes are made. The defense will look to make sure that law enforcement in all its zeal, especially in online john stings, did not end up arresting the wrong person. How clear is the evidence of identification here? Texas Penal Code §43.021(a).
Do they have the right ages?
The statute references minors, defined as those under the age of 18 years. Texas Penal Code §43.021(b).
Were those involved under the age of legal adulthood at the time of the alleged solicitation? Is there proper evidence that the accused thought them to be under the age of eighteen, or that it was represented to the accused that they were younger than 18 years old?
Of note, “minor” is considered to be anyone under the age of 17 years of age under the related criminal charge of online solicitation of a minor in Texas Penal Code §33.021(a)(1).
What about prior convictions?
The felony punishment range under the statute increases if the state can show prior convictions. The prosecutor will use the past record to “enhance” the punishment. A defense lawyer, understanding this, will be looking for things that can refute the relevance of the prior convictions, or their validity and legality. Texas Penal Code §43.021(b)(c).
What about the distance involved in the location enhancement?
The defense will check to make sure that the statute’s distance requirements do indeed apply for proximity to schools or school functions. Texas Penal Code §43.021(b).
Criminal Defense Against Solicitation of Prostitution Charges and Felony Sentencing
Along with working hard on the elements of the crime itself, the defense will also be considering arguments and authorities to fight against the harsh felony punishments that the accused faces under this statute. As of 2021, johns are convicted felons upon the state’s proving their case and the imposition of a felony sentence unless there are defense strategies to combat this.
Anyone facing charges for buying sex in Texas is facing serious jail time and if they have prior convictions or other issues are involved (like other charges), the sentencing can be increased so they will spend much of their lives behind bars. Prosecutors will be seeking to maximize punishment, while the defense will be looking for substantive arguments to lessen the charges and minimize the sentencing.
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To understand more on how complicated the defense efforts in reducing sentencing can be in a sex crime matter where the defendant faces serious incarceration, read about my prior case results in Probation In A Federal Child Porn Case: Case Study by Defense Attorney Michael Lowe and Fort Worth Federal Judge John McBryde Child Porn Downward Departure Sentence.
Things are particularly serious if a minor is involved in these cases. Enlisting the help of an experienced Texas sex crimes attorney can be decisive for the accused and for their loved ones.
For more, read:
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Internet Sex Crimes: Criminal Defense Overview of Texas Online Sexual Offenses
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Online Sex Crimes: Prostitution over the Web is Illegal in Texas
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Cyber Crimes, Computer Crimes, Internet Arrests: Texas Criminal Defense Overview
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For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth articles, “Pre-Arrest Criminal Investigations” and “Sex Crimes In Texas: How Soon Do You Need to Call a Criminal Defense Lawyer?”
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