Baylor football made the news again, with an assistant football coach getting arrested for prostitution. Most people when they hear about prostitution they think about women getting picked up. The image that comes to mind might be the woman, who the police know well, and is a regular at the jail. While that may have been the case years ago, now it's far more likely that the person arrested for prostitution is a man.

After I saw the article, I checked the jail list and discovered there were at least 15 men who had been arrested for prostitution. That generally means police are running a "sting". The usual scenario is an investigator sets up a profile on Craigslist or Backpage, and offers "services". The offers usually aren't blatant; instead, it is enough to encourage contact. Once the contact is made, then things become more explicit. The investigator will agree to meet at a certain location, and when the other person arrives they are arrested.

You might think that sounds like entrapment. You would be wrong. Entrapment requires an unwilling participant, who is talked into committing a criminal offense. If you're trolling the "personals" sections in Craigslist or Backpage, you aren't exactly an unwilling participant.

The Penal Code Definition of Prostitution

The other question you might have is how they can prove an offense if the person is arrested before anything happens. That's a good question, and one the legislature thought through.

Prostitution is covered by Section 42.02 of the Penal Code. Paragraph (a)(1) defines the offense as "offers to engage" or "agrees to engage" in sexual conduct for a fee. The statute also provides that an offense is committed "whether the actor is to receive or pay a fee". In other words, offering money is enough, even if done through text or email.

There's a separate paragraph (a)(2) that prohibits soliciting another in a public place to engage in sexual conduct. That was the section that men were usually charged under. The scenario you see on TV is fairly accurate; police place an undercover officer on the street and wait for someone to drive up and offer them money.

Punishment for Prostitution

Prostitution is a Class A misdemeanor unless you've been convicted of the same offense more than 2 times. Then it becomes a State jail felony.

There is a way that prostitution can become a felony, even for a first offense. The statute was recently amended to make it a felony if the person solicited was 18 or under. We've had people come in who found this out the hard way, because the age of consent is 17 in Texas. That age does not apply to prostitution. If the person solicited is under 18 it is a felony, and the statute specifically states that it's not a defense that you don't know the person's age. In other words, they can say they are 21, but if that's not true, it's not a defense.

Don't Let Embarrassment Keep You from Seeking Help

There's no doubt that an arrest for prostitution is embarrassing - even if its not splashed all over the news. Because they don't want anyone to know, some people try to handle the case on their own, without a lawyer. Don't make that mistake! You don't want to a prostitution conviction following you around for the rest of your life, and there may be ways to keep that off your record. You need an experienced lawyer - and the sooner you get one the better.

If you were arrested in Waco or McLennan County, give us a call at 254-296-0020, or fill out our contact form. It's embarrassing at first, but it's not as bad as having to admit for the rest of your life you were convicted of prostitution.

Walter Reaves
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Criminal Defense Attorney Walter Reaves has been practicing law for over 35 years.
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