Patronizing Prostitution in Tennessee could cost you your job, your family, require mandatory medical testing and counseling, and between seven days to a year in jail
IF YOU ARE READING THIS IN 2017:
The Shelby County District Attorney’s Office has waged war on defendants charged with Patronizing Prostitution. In the past, defendants used to be able to take a course, pay a fine, pay court costs, pay to get their seized car back, and then they could go about their life without losing their job, their marriage, and their freedom. In short, it was a very effective “money grab” under the guise of cleaning up the streets, and a fun way to get police overtime hours. Now, the prosecutors come into court and refuse to make a reasonable offer – even opposing your legislative right to seek judicial diversion, where you receive no jail time and the offense can be removed from your record after the successful completion of a probation period. The prosecutors bring out the boogeyman, talking about how law enforcement is “rescuing sex slaves,” and they try to connect you to some larger operation that has nothing to do with you. They ask for sympathy from the judge, talking about how many hours the police had to work to set up these ridiculous operations. These tactics are complete hypocrisy, given that the prosecutor’s office has completely turned 180 degrees from their previous position. You are dealing with a political situation rather than a legal one, and you will get caught in the cross hairs if you walk into court with an attorney who doesn’t know about this new policy. I am following this issue very closely and usually represent about half of the individuals who get caught in each sting operation. Contact me immediately to discuss how we can handle your case in this new toxic environment.
An individual accused of attempting to hire a prostitute may be subject to the charge of patronizing prostitution. This charge is often alleged to have occurred through on-line classified sites such as Backpage or Craigslist. This charge can also result from a person-to-person transaction in which an individual approaches an undercover officer pretending to be a prostitute.
There is a common misconception that when an undercover officer pretends to be a prostitute, there will be a defense of entrapment. Entrapment only results when an officer persuades an otherwise unwilling individual to commit the act – merely providing the opportunity will not result in an entrapment defense. Other unacceptable defenses are listed below.
The offense is more serious when it occurs within a limited range of a school or church. However, due to the expansive geographical interpretations, an individual will likely be charged with this enhancement without even knowing that school or church is nearby. How would you like to spend a minimum of seven days in jail plus a minimum fine of $1,000? Read this Attorney General opinion confirming that this is the minimum sentence upon conviction.
The most severe penalty of this offense is that conviction may result in the individual being placed on the Sex Offender Registry. If you have been charged with patronizing prostitution, please contact me immediately to discuss how we can defend your reputation and your freedom.
I have written an entire consumer guide for individuals charged with this offense, which can be downloaded for free here. You can also read my original blog entry discussing the consumer guide and its contents here.
Tenn. Code Ann. 39-13-512(3). “Patronizing prostitution” means soliciting or hiring another person with the intent that the other person engage in prostitution, or entering or remaining in a house of prostitution for the purpose of engaging in sexual activity.
Tenn. Code Ann. 39-13-514. Patronizing prostitution – Unacceptable defenses
(a) A person commits an offense under this section who patronizes prostitution.
(b) (1) Patronizing prostitution is a Class B misdemeanor.
(2) Patronizing prostitution within one hundred feet (100′) of a church or within one and one-half (11/2) miles of a school, such distance being that established by § 49-6-2101, for state-funded school transportation, is a Class A misdemeanor.
(3) A person convicted of patronizing prostitution within one and one-half (1 1/2) miles of a school shall, in addition to any other authorized punishment, be sentenced to at least seven (7) days of incarceration and be fined at least one thousand dollars ($1,000).
(4) (A) Patronizing prostitution from a person who is younger than eighteen (18) years of age or has an intellectual disability is punishable as trafficking for commercial sex acts under § 39-13-309.
(B) Nothing in this subdivision (b)(4) shall be construed as prohibiting prosecution under any other applicable law.
(c) As used in subsection (b), “school” means all public and private schools that conduct classes in any grade from kindergarten through grade twelve (K-12).
(d) It is not a defense to a violation of this section that:
(1) The subject of the offense is a law enforcement officer; or
(2) The victim of the offense is a minor and consented to the offense.
Excerpt from my Patronizing Prostitution consumer guide:
I can only give general advice here without having read the specific facts in your case, but I can say this – often, when the Vice Squad runs an undercover operation, they initiate the take-down signal too early, which can help us argue that there was not a completed transaction.
This is often what happens: a man is interested in hiring a prostitute who is actually an undercover officer. Whether he tries to engage her through a profile such as backpage.com or whether he approaches her on the street, there is some brief conversation about what acts the alleged prostitute will do in exchange for money. In many cases, the defendant either decides not to complete the transaction by actually tendering money, but there is a tentative verbal agreement.
My position (obviously defense friendly) is that unless money is exchanged, the act has not been completed. Take, for example, a drug sale. Without money, there is no sale; only talk. If someone came to your house and wanted to buy your car and you and he agreed on a price, you still wouldn’t hand the keys over to him until he paid for it! Everything before that is just negotiations in my opinion.
However, the statute does not specifically say that money has to be tendered. If the judge or the jury decides that the offense has been committed and does not require money, then the appellate court will likely uphold the verdict. The prosecutor must show that the criminal defendant was “soliciting or hiring another person with the intent that the other person engage in prostitution, or entering or remaining in a house of prostitution for the purpose of engaging in sexual activity.” Tenn. Code Ann. § 39-13-512.
Even if the judge or jury decided that the transaction had not been completed, the facts may still support a conviction for “attempted” patronizing prostitution. A person has committed criminal attempt when they “act with intent to complete a course of action or cause a result that would constitute the offense, under the circumstances surrounding the conduct as the person believes them to be, and the conduct constitutes a substantial step toward the commission of the offense.” Tenn. Code Ann. § 39-12-101. Under that definition, a person discussing sex acts with an undercover officer in exchange for compensation could be found guilty of at least criminal attempt of patronizing prostitution.
In rare circumstances, the officers act too aggressively and can open themselves to a claim of entrapment. Let me begin by saying that entrapment very rarely works – it is not enough merely to provide an opportunity; instead, law enforcement officials must induce or persuade an otherwise unwilling person to commit an unlawful act when the person was not predisposed to do so. Tenn. Code Ann. § 39-11-505.
What facts can make the charge more serious?
Patronizing prostitution is a Class B misdemeanor. The range of punishment for a Class B misdemeanor is “not greater than six (6) months or a fine not to exceed five hundred dollars ($500), or both.” Tenn. Code Ann. § 40-35-111.
Patronizing prostitution within one hundred feet (100′) of a church or within one and one-half (1.5) miles of a school is a Class A misdemeanor. The range of punishment for a Class A misdemeanor is “not greater than eleven (11) months, twenty-nine (29) days or a fine not to exceed two thousand five hundred dollars ($2,500), or both.” Tenn. Code Ann. § 40-35-111.
The statute specifically states that “a person convicted of patronizing prostitution within one and one-half (1.5) miles of a school shall, in addition to any other authorized punishment, be sentenced to at least seven (7) days of incarceration and be fined at least one thousand dollars ($1,000).” In most cases, this will be the minimum sentence offered by the prosecutor.
Although it is a rare occurrence, if the defendant is accused of patronizing prostitution from a person who is younger than eighteen (18) years of age or has an intellectual disability, the offense becomes a very serious felony of trafficking for commercial sex acts under § 39-13-309. This offense can potentially lead from a range of eight to fifteen years in prison, depending on various facts.
Could this charge put me on the Sex Offender Registry?
Patronizing prostitution will not normally place a criminal defendant onto the Sex Offender Registry. However, if the defendant is accused of patronizing prostitution from a person who is younger than eighteen (18) years of age or has an intellectual disability, the offense becomes a very serious felony of trafficking for commercial sex acts under § 39-13-309.
Along with a range of eight to fifteen years in prison, the offense will place the defendant on the Sex Offender Registry. Tenn. Code Ann. § 40-39-202(20)(A)(xix).
Can I get a diversion on this offense?
If you’ve done some research online (perhaps on my website, which is located at MemphisDiversion.com), then you know that judicial diversion is a wonderful program that allows individuals with little to no criminal background to enter a guilty plea in a manner that avoids future jail time and the eventual expunction of the criminal charge upon the successful completion of a probationary period. Tenn. Code Ann. § 40-35-313.
After the criminal defendant enters a guilty plea, the sentence is suspended and the charge would show on a criminal background check as a pending offense (not a conviction). If the criminal defendant is successful, he or she has achieved the same result as winning at trial.
Patronizing prostitution is eligible for diversion unless the defendant is accused of patronizing prostitution from a person who is younger than eighteen (18) years of age or has an intellectual disability. In that case, it is defined as a “sexual offense” under Tenn. Code Ann. § 40-39-202(20)(A)(xix).
What defenses are unavailable?
A criminal defendant seeking to raise a defense against the criminal charge of patronizing prostitution cannot argue that because the alleged prostitute was a law enforcement officer and was never going to engage in a sex act, the offense never could have actually occurred.
The statute specifically states that “it is not a defense to a violation of this section that the subject of the offense is a law enforcement officer.” Tenn. Code Ann. § 39-13-514(d)(1).
Additionally, the statute states that a criminal defendant cannot raise a defense that the victim of the offense is a minor and consented to the offense (because a minor cannot consent as a matter of law). Tenn. Code Ann. § 39-13-514(d)(2).
Do I have to get tested at the Health Department?
If a criminal defendant is convicted for patronizing prostitution, the court shall order the convicted person to submit to an HIV test. The test shall be performed by a licensed medical laboratory at the expense of the defendant. The defendant shall obtain a confirmatory test when necessary.
The defendant shall also be referred to appropriate counseling. The defendant shall return a certified copy of the results of all tests to the court. The court shall examine results in camera and seal the record. Tenn. Code Ann. § 39-13-521.
Could law enforcement seize my house or car over this?
If a criminal defendant was found to have used his or her house or any personal property in the commission of patronizing prostitution, the real or personal property is subject to judicial forfeiture, but only if the offense is committed against a person under eighteen (18) years of age and was committed on or after July 1, 2006. Tenn. Code Ann. § 39-13-530.