Prostitution Attorney | Defenses Charges

Estimated reading time: 11 minutes

by Prostitution Attorney Thomas C. Gallagher.

Should sex between consenting adults be a crime? After all, non-consensual sex is a crime.

Consenting Adults

Unlike many states and nations, Minnesota prostitution law makes a crime of consensual sex for money. In Minnesota, prosecutors charge more customers with prostitution charges than sex workers. And “Solicitation of Prostitution” is often the charge.

Not Always a Crime: We often call prostitution the oldest profession. It has been around a long time. But in the United States and around the world, many governments have laws that either regulate it, or criminalize it. When a made into crime, the laws drive it into an unregulated underground economy. Arguably, most social ills associated with prostitution are the effect of criminalization. (Compare with jurisdictions where it is not a crime.)

Minnesota generally treats prostitution as a crime through many Minnesota criminal statutes. And federal prosecutors can file a federal criminal charge. This page, by Prostitution Attorney Thomas Gallagher, focuses on Minnesota state laws.

How to get Arrested

“Backpage” sex workers, and those on similar escort web sites like “Eros,” predominate these days. So, little prostitution happens on the street anymore. Police are aware, and routinely set up sting operations, with their own online ads.

Here is the classic police online ting: When the would-be client calls, a police officer lures them along, eventually leading the target to the destination — often a hotel room or apartment. Once inside, she (or he) soon confirms the arrangement of some sexual act for a price. She leaves the room “for a moment.”

Police officers jump out for the arrest and what follows. These events may be video recorded. Police invite the client to admit or offer excuses. No matter what excuses the person makes, the statement will be valuable to police and prosecutors. But the target who remains silent unless their lawyer is present; will be less likely to face charges or conviction.

The police officers release most after identification procedures (“booking”), with a court Summons. Police are then ready for the next one in the sting pipeline.

In the past few years, police began cutting corners, arresting people at the door of the sting location. They rely upon the text messaging to show intent to solicit prostitution. If the target says anything at the time of arrest, even better for them.

Now is the time to retain an experienced prostitution defense attorney.

Is prostitution a misdemeanor?

Usually. But prosecutors can charge it as a gross misdemeanor as well, often with claims of the element “in a public place.”

And prosecutors can also charge felony prostitution; on a claim of a patron’s agreement to hire a sex worker under age 18 years old. Minnesota’s criminal statutes relating to prostitution crimes are in Sections 609.321 – 609.326.

Prostitution Charges: Prostitution Attorney

Though prosecutors charge these types of cases as Felonies, Gross Misdemeanors, or Misdemeanors, the misdemeanor cases are common.

But if you are facing a prostitution charge at any severity level; you need the best prostitution attorney to defend you and your good name.

Common charges

Solicitation in Public Place: Prostitution Attorney

Minnesota Statutes § 609.324, subd. 2. The “public place” element makes it a Gross Misdemeanor. Prosecutors sometimes claim private apartments and hotel rooms are “public.” And this is the most common of these charges. But your prostitution attorney will ask the jury to tell the state that a hotel room is not a public place.

Engaging or Agreeing to Prostitution (18 or older)

Minnesota Statutes § 609.324, subd. 3. A Misdemeanor generally, the crime enhances to a Gross Misdemeanor if a similar prior conviction exists within two years.

Loitering with Intent Prostitution (Public Place)

Minnesota Statutes § 609.3243. This Misdemeanor crime statute falls into the highly suspect class of “Loitering” crimes. Loitering crimes have a history of constitutional law issues.

Discretionary: Like other inchoate crimes, police and prosecutors often target disfavored people and classes. A prostitution attorney sees this kind of discriminatory enforcement all the time.

A “loitering with intent” crime often rests upon:

• subjective interpretations of others’ behavior (bias),
• series of speculations,
• presume the other person’s “intent.”

The “loitering” term is to gloss over the lack of any real prohibited act, or any act at all.

Felony Crimes: Prostitution Attorney

Though less common, prosecutors charge some prostitution-related crimes as a Felony. And most felony prostitution charges include an alleged an underage person (often imaginary).

Attempt Prostitution

Under Minn. Stat. § 609.17, subdiv. 1, “Whoever, with intent to commit a crime, does an act which is a substantial step toward, and more than prepared for, the commission of the crime is guilty of an attempt to commit that crime.” And under Minn. Stat. § 609.324, subdiv. 1(c)(3), it is unlawful to hire or offer or agree to hire an individual “who the actor reasonably believes to be under the age of 18 years but at least 16 years to engage in sexual penetration or sexual contact.”

The “substantial step” requirement is not a bright-line rule but instead depends on the facts of each case. See, e.g., State v. Degroot, 946 NW2d 354, 363 (Minn. Supreme Court 2020). In Degroot, the Minnesota Supreme Court upheld a defendant’s conviction for attempted third-degree criminal sexual conduct.

In that case, a police officer pretended to be a profile of a fourteen-year-old boy. The defendant exchanged many text messages with the officer including sexual words and photographs, and an agreement to meet. During text communications, the police officer eventually claimed to be fourteen. The defendant and officer made plans to shower together after meeting, among other things. The defendant got in his car with things for their planned encounter and drove to the agreed location. The police officer directed the defendant to a parking lot across the street from the meeting place. Police observed the defendant exit his car and walk toward the house while carrying a plastic shopping bag. They arrested him while he was still in the parking lot. With those facts, the Minnesota Supreme Court upheld the conviction after a court trial, saying the “substantial-step element” of the attempt statute was met. State v. Degroot, 946 NW2d 354, 364 (Minn. Supreme Court 2020). For more on Attempt and other inchoate crimes see:

Attempts, Solicitation: Inchoate Crimes.

Solicitation, Inducement, Promotion of Prostitution (Any Age)

Minnesota Statutes § 609.322, addresses solicitation, inducement, promotion of prostitution, regardless of age. Also known as pimping. This is a Felony crime for those other than the sex workers and patrons themselves.

Engage, Agree to Hire Under 18 Prostitution

Minnesota Statutes § 609.324, subd. 1. This Felony targets patrons who hires those under 18 years old.

Factors

Age. A person’s age alone can change the level of the criminal charge under the statutory scheme. There are many permutations relating to age in the statutes. But the most important is probably the difference between age 18, and under 18.

Most of these criminal statutes define these crimes as a felony if the sex worker is under age 18.

Role. The law now treats Promoters more harshly than Customers, who in turn are treated more harshly than Sex Workers.

Location. When in a “Public Place,” a charge is more severe. So, housing, as well as “Place of Prostitution” can be factors. Prostitution “in a motor vehicle” can result in a driver’s license record notation; and vehicle forfeiture under Minnesota Statutes § 609.5312, subd. 3. And there is a charge enhancement provision for school or park zones. More on:

In a Public Place.

So, a skilled prostitution attorney takes a close look at the evidence of these factors, for defenses.

Defenses: Prostitution Attorney

Minnesota Statutes Section 609.325 “Defenses” seems an effort to legislate away defenses. But it does create a defense for some sex workers. We can raise defenses to these charges, however.

Law enforcement sets up their prostitution sting room, staging location and webpage. Then, they can move “patrons” through as if an assembly line, one after the other. Police hustle one out the back door to make room for the one coming in the front. But over time, they cut corners to save time and end up charging people on weak evidence — people who are not-guilty.

An experienced prostitution defense lawyer can spot these weak cases and win.

Entrapment Defense

The entrapment defense is an affirmative defense. The accused initially shows evidence in court that she (1) had no predisposition to commit the crime; and (2) that the crime would not have occurred but for the actions of police. Then, the final burden of proving the accused was not entrapped is on the prosecution.

Most arrests in this area today are the product of a police sting or trap. But not every police sting operation meets the criteria of a legal “entrapment” defense. It is possible, however, to make an entrapment defense if police go too far.

The courts allow police to use a certain amount of deception in their work. But sometimes they cross the line, and accuse people who have not committed any crime. A good prostitution attorney is able to spot an entrapment defense when the facts support it.

Sentencing Entrapment happens when police bait-and-switch, manipulating the defendant to increase the severity level of the crime. So the defendant had no pre-disposition to commit the enhancement element (e.g. age); which was the product police choices, not the defendant’s. Police lure a target who is seeking an adult sex worker. First the police have the victim coming along towards the promise of an adult connection. Once hooked, then they text: “oh hey, I’m 15 y.o., is that ok?” If the target continues, a felony charge results.

And if this happens, a good prostitution attorney asks the judge to disregard the felony enhancement. Though not a complete defense, sentencing entrapment provides a disincentive to police to unfairly inflate bigger crimes out of smaller ones. See:

Sex Workers, Prostitution & Minnesota Law.

Sex Workers

Though prosecutors charge sex workers less often than customers, workers sometimes face prostitution charges. When they are, it’s not uncommon for the case to be weak, and not the result of a planned sting. When comes to suspected sex workers, I’ve seen patterns of harassment. Police seem to want to drive sex workers away to another jurisdiction. This can take the form of weak evidence and false charges.

But an experienced defense attorney like Thomas Gallagher can spot these cases and help his client prevail. Prosecutors sometimes falsely charge people with prostitution, though not-guilty. In part, this may be due to a lack of understanding by police or prosecutors.

Harassment of sex workers: For example, most sex workers want to have some security — someone to know their whereabouts and personal safety. That person may not be aware of what the sex worker is doing. But we’ve had a prosecutor charge the client simply waiting in the parking lot in their car for their friend.

Another example was a client who was a stripper, in a bar. Undercover police were present looking for violations by the unwelcome bar owner. Police observe a bar customer grab our dancer-client’s breast — a violation of norms in strip bars. (No touching the dancers.) Unaware of undercover police, our dancer-client yells and kicks at him; and storms off the stage. And then she yells at the bar owner tending bar, for not throwing the guy out. She then retreats to her dressing room, shutting the door.

So she was an assault victim. Yet later, a prosecutor charges her, with prostitution. (We achieved dismissal of all charges in the end.)

What is at stake; Prostitution Attorney

Most cases involve misdemeanor prostitution charges. Some, however, involve gross misdemeanor and felony charges. But regardless of the level charged, a first-time defendant will want to keep their criminal record clean of any convictions. It’s important. And it’s worth retaining a good prostitution attorney to help make that happen. Part of protecting a person’s record is the embarrassment factor. People don’t want their good name smeared with any criminal conviction, much less for prostitution.

With more serious felony prostitution charges or with prior convictions, jail or prison time becomes a concern. For these cases, clients will want a good prostitution attorney to avoid or reduce any potential incarceration.

When a person becomes aware of being a police target, they may wish to retain the best prostitution attorney for pre-charge counsel and defense.

Why Gallagher Criminal Defense?

I can help a person facing one of these charges. We identify a goal and successful outcome. And then we map out a path with the best chance of achieving that outcome.

Attorney Thomas Gallagher can bring you all of the knowledge and skills to achieve a favorable outcome. And his experience doesn’t hurt, either.

Thomas Gallagher is a Minneapolis Prostitution Attorney with over 35 years experience defending clients successfully. Perhaps Gallagher has not seen it all yet, but a lot. And you may be able to put his experience to work for you.

Question? Call Attorney Thomas Gallagher, 612 333-1500

Do you have a question? Give him a call.

More: prostitution attorney

Indecent Conduct Charges in Minnesota

Age-Based Consensual Sex Crimes Defense

Duress Defense | Complete or Partial

Public Order Crimes and Their Defense

Unlawful Arrest: Legal Remedies

Obstruction & Resisting Arrest