Prostitution is a polarizing word. There are some who look at the very real horrors of human trafficking and there are others that believe if regulated by the government there could be tax revenues generated as a result of actions between consenting adults. Fortunately, neither this blog entry nor I will deal with any of the theoretical angles of prostitution. Simply, the bottom line is that in New York State, prostitution is a crime. Depending on one’s involvement, offenses range from misdemeanors to felonies. Regardless of the crime, you and your criminal lawyer would need to identify and formulate your best defense to avoid the embarrassment and stigma of a prostitution related arrest in New York City or elsewhere in the Empire State.
While this blog entry will not serve as an answer or legal advice for your particular arrest, it will review the crime of Promoting Prostitution in the Fourth Degree pursuant to New York Penal Law 230.20(1) . This particular degree of Promoting Prostitution is a class “A” misdemeanor punishable by up to one year in jail. As noted above, there are other more serious degrees of Promoting Prostitution in New York that are felonies and carry terms of incarceration in prison. Just as you should in all cases, consult with your own criminal defense attorney as to the nature of these and related charges should you be arrested or investigated for such crimes.
A person is guilty of Promoting Prostitution in the Fourth Degree, NY PL 230.20(1), if and when that person knowingly advances or profits from prostitution. This crime is satisfied whether your profit is a nickle or you nominally move the ball forward in advancing prostitution. Again, there other degrees that are more serious with much greater penalties.
With this basic understanding of Fourth Degree Promoting Prostitution, the question becomes how is the law applied and how is it interpreted by the courts? Not totally encapsulating, a recent decision from Queens County (one of New York City’s boroughs) gives us some guidance in what will not rise to a violation of PL 230.20(1) as drafted. Please remember that each case is unique.
In People v. Telles, 2014QN069258, NYLJ 1202731805436, at *1 (Crim., QU, Decided June 5, 2015), a sworn criminal court complaint alleged that the defendant handed out cards with scantily clad and barely dressed women to ten people with the words “free delivery” printed on those cards. Additionally, the officer who swore out the complaint stated that the cards had a phone number to call for a prostitute (but the word “prostitute” was not on the card).
In reviewing the case to determine whether the complaint was facially or legally sufficient, the court acknowledge that it was bound by the four corners of the paper before it.
Although the Court recognized that the words “for a fee” or similar words are not necessary to establish Promoting Prostitution (see People v. Prevete, 10 Misc. 3d 78, 79, 809 N.Y.S.2d 777 [App. Term, 9th and 10th Depts 2005]). At the same time, person “advances prostitution” when, “acting other than as a prostitute or as a patron thereof, he knowingly causes or aids a person to commit or engage in prostitution, procures or solicits patrons for prostitution, provides persons or premises for prostitution purposes, operates or assists in the operation of a house of prostitution or a prostitution enterprise, or engages in any other conduct designed to institute, aid or facilitate an act or enterprise of prostitution” (PL §230.15).
In the instant case, the Court held that the complaint was not legally sufficient and should be dismissed. First, nothing contained in the information reflected the defendant’s intent to advance prostitution. The statement by the police officer that it was for prostitution was conclusory. Nothing contained in the accusatory instrument asserted that there was a communication between the defendant and any party for arranging or facilitating sexual intercourse for a fee. There were no printed words reflecting this either. Further, there could very well be legitimate and legal reasons or business that have cards with scantily clad women on them. Simply, more is needed than the conclusion of a police officer and the absence of direct evidence of Promoting Prostitution.
In conclusion, the Court had some noteworthy and choice words:
“This Court finds it disturbing that websites such as Craigslist are granted immunity under Section 230 of the Communications Decency Act, where ads are posted on their website that clearly solicit patrons for prostitution (see 47 U.S.C.S. §230(c)(1); see also Dart v. Craigslist, Inc., 665 F. Supp. 2d 961, 2009 U.S. Dist. LEXIS 97596 (N.D. Ill. Oct. 20, 2009). Meanwhile, scant allegations, like the ones here, result in arrests of people who may have thought that they were distributing business cards for a legal and legitimate business.”