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Online Sex Crimes: Prostitution over the Web is Illegal in Texas

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Internet prostitution is a very (VERY) lucrative enterprise here in Texas.  Consider this: in 2019, criminal justice research studies estimated that 80% of the illegal prostitution industry in this country was conducted over the internet.

Why?  There are many reasons.  Pimps and traffickers are reported to prefer online prostitution because it is harder for them to be arrested by law enforcement than when they are overseeing prostitution services on the street.  Also, researchers report online prostitutes may be able to charge a higher fee for their sexual services because they are viewed as “being of a higher class relative to street walkers.” Read Sparks, Elicka P., et al. “Comparison of Financial Lucrativeness and Safety in the World of Online and Offline Prostitution: An Exploratory Study of Perceptions and Experiences of Law Enforcement.” American Journal of Criminal Justice 45.2 (2020): 332-333.

Another big reason for the lucrative online prostitution business is a federal law that protects certain websites from liability in these cases.  Specifically, Section 230 of Communications Decency Act is a federal statute designed to protect free speech but which effectively blocks sites like Craigslist from criminal liability for advertisements or postings designed to advertise or market the selling of sexual services.  For an in-depth discussion of Craigslist; the Communications Decency Act; and prostitution, read Chan, Jason, Probal Mojumder, and Anindya Ghose. “The digital Sin City: An empirical study of Craigslist’s impact on prostitution trends.”  Information Systems Research 30.1 (2019): 219-238.

Online Prostitution Illegal in Texas Since 2019

Relatively recently, the Texas Legislature passed two new laws targeting online prostitution in the Lone Star State.  In 2019, two specific criminal statutes became law, both applying to prostitution over the internet and outlawing “online promotion of prostitution” and the distinct crime of “aggravated online promotion of prostitution.”

Of course, prostitution has been illegal in Texas for a very long time.  Part of the reason for the passage of these two new laws in 2019 was to try and combat the growth of human trafficking, where women and children are trafficked for sex.  Read, Farley, Melissa, Kenneth Franzblau, and M. Alexis Kennedy. “Online prostitution and trafficking.” Alb. L. Rev. 77 (2013): 1039.

For more on Human Trafficking charges in Texas, read:

1.  Texas Penal Code §43.031 – Online Promotion of Prostitution

The Texas Legislature defines the crime of “online promotion of prostitution” in Texas Penal Code §43.031 as follows:

A person commits an offense if the person owns, manages, or operates an interactive computer service or information content provider, or operates as an information content provider, with the intent to promote the prostitution of another person or facilitate another person to engage in prostitution.

An offense under this section is a felony of the third degree, except that the offense is a felony of the second degree if the actor:

  • has been previously convicted of an offense under this section or Section 041 (Aggravated Online Promotion of Prostitution); or
  • engages in conduct described by Subsection (a) involving a person younger than 18 years of age engaging in prostitution, regardless of whether the actor knows the age of the person at the time of the offense.

2.  Texas Penal Code §43.041 – Aggravated Online Promotion of Prostitution

The Texas Legislature defines the crime of “aggravated online promotion of prostitution” in Texas Penal Code §43.041 as follows:

A person commits an offense if the person owns, manages, or operates an interactive computer service or information content provider, or operates as an information content provider, with the intent to promote the prostitution of five or more persons or facilitate five or more persons to engage in prostitution.

An offense under this section is a felony of the second degree, except that the offense is a felony of the first degree if the actor:

  • has been previously convicted of an offense under this section; or
  • engages in conduct described by Subsection (a) involving two or more persons younger than 18 years of age engaging in prostitution, regardless of whether the actor knows the age of the persons at the time of the offense.

What is Prostitution?

From a criminal defense standpoint, one of the first considerations in any investigation or arrest for violation of Texas Penal Code §43.031 or §43.041 must be whether or not the circumstances meet the definition of prostitution as provided in the Texas Penal Code.  After all, it is not illegal to seek romance over the web, and hookups between consenting adults via Craigslist, Facebook, or other online sites happens all the time.

To constitute the crime of prostitution, the elements of Texas Penal Code §43.02 must be proven by the prosecution with admissible evidence.  The statute provides:

(a) A person commits an offense if the person knowingly offers or agrees to receive a fee from another to engage in sexual conduct.

Key here is evidence of the fee involved.  Another critical element: the individual knowing that the fee is being paid for sexual conduct.

What is the Promotion of Prostitution?

The Texas Legislature has also provided a specific definition for “promotion of prostitution” in Texas Penal Code §43.03.  This statute states:

A person commits an offense if, acting other than as a prostitute receiving compensation for personally rendered prostitution services, he or she knowingly:

(1)  receives money or other property pursuant to an agreement to participate in the proceeds of prostitution; or

(2)  solicits another to engage in sexual conduct with another person for compensation.

Charges pursuant to this criminal statute are made against those who are the alleged pimps or traffickers involved in the prostitution enterprise.  From a criminal defense standpoint, the state’s evidence must be sufficient to support several elements here, including the knowing receipt of money or property or the knowing coordination of the prostitute and the john for compensation.

What is Aggravated Promotion of Prostitution?

Things become more serious if the charges are based upon “aggravated promotion of prostitution” as defined in Texas Penal Code §43.041.  Conviction here is for an offense carrying a potential life sentence.

This statute states:

A person commits an offense if he knowingly owns, invests in, finances, controls, supervises, or manages a prostitution enterprise that uses two or more prostitutes.

Review of the state’s case from a criminal defense perspective will include evidence of the number of prostitutes allegedly involved in the enterprise as well as the alleged involvement of the accused in ownership; investment; financing; etc.  Notice how it is possible for someone to be convicted of aggravated promotion of prostitution without ever being personally involved in the operation.  Investment alone can get you facing serious felony charges.

Don’t Forget The Customer:  Buying Sex is a Felony in Texas

These statutes target the person providing sex for money (prostitute) as well as the person who is financing, overseeing, or managing the sexual services (pimp or trafficker).  Until recently, the individual who bought sex (the john) was not subject to serious jail time.

However, this is not true in Texas any longer.  As of September 2021, johns can be arrested and charged with a felony crime for buying sex from a prostitute.  For more, read our earlier discussion in: Buying Sex in Texas: Texas is First State in USA to Make Solicitation of Prostitution a Felony Offense.

Punishment: Serious Felony Charges

The range of punishment facing someone who is convicted of either (1) online promotion of prostitution pursuant to Texas Penal Code §43.031 or (2) aggravated online promotion of prostitution in accordance with Texas Penal Code §43.041 is facing serious felony charges.

Pursuant to Texas Penal Code §43.031(b), conviction of an offense under this statute is usually a felony of the third degree.  However, it may be enhanced under the law to a felony of the second degree if certain conditions are proven by the state (see above for statute details).

Even more serious punishment arises upon conviction for aggravated online promotion of prostitution under Texas Penal Code §43.041.  Here, the usual sentence is for a felony of the second degree; however, the accused may face conviction for a felony of the first degree if the sentence can be enhanced under the statute (as described above).

These are serious felonies.  All involve years of incarceration in a Texas facility.  The least amount of time results with a conviction for a felony of the third degree which carries a range of punishment between two (2) and ten (10) years imprisonment (along with a possible maximum fine of $10,000).

At the other end of the continuum in these matters is the possible sentence for a felony of the first degree which is the most serious punishment under Texas law, second only to the death penalty.  First degree felonies are defined for crimes that include aggravated sexual assault; attempted capital murder; and aggravated kidnapping.

Arrest for Promotion of Prostitution in Texas: Criminal Defense

Law enforcement may take some time building their case before arresting someone for online promotion of prostitution.  Experienced sex crime criminal defense lawyers are rarely surprised to see an ADA allege violation of Texas Penal Code §43.031 or Texas Penal Code §43.041 alongside other related charges for things like human trafficking; drug possession or distribution; money laundering; or crimes involving affiliation with organized gang activities or cartel operations.

For more, read:

A zealous criminal defense will undertake a detailed, multi-layered approach to each count and each element of the crimes alleged to have been committed.  Each piece of the prosecutor’s evidence file must be reviewed and analyzed.  Likewise, an independent investigation of the factual circumstances must be undertaken for an effective defense in these matters.

Questions to be answered involve not only the extent of proof that supports each element of the charge but also how the state sought and obtained the evidence.  Constitutional due process challenges may be necessary here, as well as arguments against improper procedure.

  • Was there a search? If so, was it illegal?
  • Was there a seizure? If so, was it illegal?
  • Was there surveillance? If so, was there an unconstitutional violation of privacy?
  • What happened during the arrest? Was there a Miranda warning?

For more, read:

The defense lawyer may also discuss the possibility of entering into plea negotiations with the ADA.  Here, if the case cannot be dismissed or avoided in its entirety, then the possibility of seeking a lessening of the charges or alternative sentencing must be considered.  See:

Anyone facing charges of online promotion of prostitution is facing serious felony charges and significant prison time.  Things are particularly serious for an accused when a minor is involved.  Having an experienced Texas sex crimes attorney in these matters can be decisive.

For more, read:

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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?”

 

 
Posted on by Michael Lowe , on InDepth Articles, Sex Crimes

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