If you've been arrested in the Houston area for a prostitution crime, there is a chance that police authorities set you up for arrest. Chances are good that you never interacted with a person who was interested in having you pay them for a sex act. The police sting operation may have been an officer posing as a prostitute for you to approach on a street or in a club or other setting. Or the police sting may have been officers catfishing on social media, posing as prostitutes for you to contact and solicit online. But you can still face a prostitution crime charge, even though the police set you up for the charge.
If Houston police or county sheriff's officers caught you in a prostitution sting operation for prosecutors to charge you with a Texas prosecution crime, retain premier Texas defense attorney Doug Murphy for your best defense. You may have entrapment or other defenses to your prostitution crime charge. Attorney Murphy is one of only two Texas attorneys Board Certified in both Criminal Law and DWI Defense. When you face Texas prostitution crime charges arising out of a police catfishing operation or other sting operation, you need the best available defense representation.
Texas Prostitution Crimes
Before considering how prostitution sting operations work, first understand the crime those operations are trying to catch or elicit. As a simple matter of definition, persons who offer sex in exchange for money commit prostitution, while persons who offer to pay for sex commit solicitation to prostitution. The important thing to recognize is that both the person offering sex and the person offering money for sex may be committing prostitution-related crimes. The one offering sex may be committing prostitution, while the one offering money may be committing the solicitation form of the prostitution crime.
To be specific about Texas law, Texas Penal Code Section 43.02 defines the prostitution crime as when someone "knowingly offers or agrees to receive a fee from another to engage in sexual conduct." By contrast, Texas Penal Code Section 43.021 defines the solicitation to prostitution crime as when someone "knowingly offers or agrees to pay a fee to another person for the purpose of engaging in sexual conduct with that person or another." The offense level and penalties for prostitution and solicitation to prostitution may be similar or the same, but the offenses differ in who is offering the sex and who is offering the money. And that small-looking difference can play out in major ways in prostitution crime prosecutions.
Prostitution and solicitation to prostitution are not Texas's only prostitution crimes. Soliciting a minor under age 18, someone the defendant believes is a minor, or someone presenting as a minor is a more serious form of Texas's solicitation to prostitution crime. Under Texas Penal Code Section 43.03, promotion of prostitution between two other persons is another Texas prostitution crime. Texas Penal Code Section 33.021 also makes online solicitation of a minor a crime, although the online solicitation of a minor crime does not require an offer of compensation, only sexually explicit communication or distribution of sexually explicit materials.
Vice Units Investigating Prostitution Crimes
Your chances of having police set you up for a solicitation to prostitution charge are strong because Texas cities, counties, and the state create, fund, and deploy vice units to fight prostitution. Houston's police department, for example, maintains its own well-funded and well-staffed vice unit. Indeed, Houston's vice unit is so well developed that it has separate General Vice, Human Trafficking, and Nuisance Abatement units, a full night shift, and a special Club Squad. The day, time, and location of the alleged offense won't matter. Houston's vice unit works closely with the Harris County Sheriff's Office and District Attorney's Office on prostitution and other vice crimes within and outside the city.
Vice units tend to investigate not just prostitution and solicitation to prostitution but also other crimes, including illegal gambling, alcohol sales to minors, pornography, and human trafficking related to sex crimes. Your solicitation to prosecution charge may have related to other suspicious vice-related activity that city, county, or state vice units were investigating. Dallas, Austin, Irving, and other Texas cities have vice units similar to Houston's vice unit. The Texas Department of Public Safety's Human Trafficking Program may coordinate investigations of prostitution and solicitation to prostitution with those local vice units. Police have plenty of resources to devote to detecting prostitution and solicitation to prostitution.
Sting Operations for Prostitution Crimes
A primary activity for city and county vice units is to conduct sting operations. Sting operations at physical locations around Houston, Harris County, and other Texas locations typically involve undercover police officers posing as customers, prostitutes, pimps, or others at sites where individuals might naturally go to offer or pay for sex. Those locations tend to be around entertainment of some form or at personal service businesses. If you face solicitation to prostitution charges, your arrest may have been at one of those physical locations. Houston's vice unit, for example, discloses that it conducts sting operations for prostitution, solicitation to prostitution, and other vice crimes in all of these locations:
● local bars;
● local entertainment venues;
● topless clubs;
● other local night clubs;
● massage parlors;
● escort services;
● modeling studios; and
● the streets.
Social Media and Other Online Sting Operations
Physical locations around town or the countryside aren't the only place where an unsuspecting individual might encounter a police sting operation targeting prostitution and solicitation to prostitution. Today, everything is on the internet, and the internet is where individuals may offer or solicit sex for compensation. Don't be mistaken: offering sex for pay online, and offering online to pay for sex, can constitute Texas prostitution and solicitation to prostitution crimes. Defendants on those charges don't have to necessarily say or do anything in person with the officer present. The Texas statutes defining prostitution and solicitation to prostitution, Texas Penal Code Sections 43.02 and 43.021, have no in-person contact or proximity requirements, provided that the prostitution was at least possible. The officer who offered online to perform a sex act in exchange for your compensation, related to your online solicitation to prostitution charge, may have been some distance away but nonetheless capable of fulfilling the agreement for prostitution services.
The Nature of Online Sting Operations for Prostitution Crimes
When Houston's vice unit and other local, state, and federal investigation units conduct sting operations online for solicitation to prostitution, they typically do so through social media, website, messenger, or other posts in which they pose as a person interested in performing sex for compensation. Craigslist and similar sites offering personal services are popular locations for sting operations. A significant percentage of the online sex-for-pay offers one might come across may well be fictitious posts by police vice units trolling for solicitation to prosecution suspects. Catfishing is the associated term in which an officer or other person creates a fictitious online identity to lure customers to the false offer, in this case, sex for pay. We're all familiar with phishing and other fraudulent online scams. Vice units, too, know the effective luring methods and practices.
Other Online Sex Crime Charges
Texas law and federal law recognize other online sex crimes beyond prostitution and solicitation to prostitution. Federal authorities are especially committed to detecting and disrupting child internet pornography scams and crimes. Federal criminal charges often include an interstate element, easily satisfied on the internet. Other federal computer crimes can include piracy, extortion, fraud, hacking, identity theft, spam, and phishing. Some of those activities may relate to prostitution and solicitation to prostitution. If you face Texas solicitation to prostitution charges relating to your online activities, beware other federal or state computer crime charges.
What Constitutes Entrapment
If you face solicitation to prostitution charges involving a police setup or sting operation, you may well have an entrapment defense. Police tactics fighting prostitution can be controversial. They can even cross statutory, procedural, and constitutional lines. Authorities are not supposed to entrap prostitution crime suspects. The general sense of the entrapment defense is that state law enforcement authorities shouldn't be luring individuals into committing crimes. Law enforcement is supposed to prevent crime, not entice, prompt, and in that limited sense, promote criminal acts. But police do have the imperative of catching criminals. And constructing circumstances to do so seems a legitimate part of crime detection, within limits. Some undercover and plainclothes detective investigation is clearly appropriate. The key is not to let police cross the entrapment line.
Texas's Entrapment Defense
Texas statutory law authorizes a defendant in a criminal case to pursue an entrapment defense when the defendant can show that police abused their investigatory authority, inducing them to commit the crime. Texas Penal Code Section 8.06 requires the defendant to show that the defendant engaged in the charged criminal behavior because law enforcement officers induced the defendant to do so using persuasion or other means likely to cause the defendant to commit the crime. While the prosecutor has the burden of proof on each element of the solicitation to prostitution crime, the defendant has the burden of proof on the entrapment defense. That burden means that the defendant may have to testify in the criminal case to establish the entrapment elements. Entrapment is not an easy defense to prove and comes with some risks.
The Constitutional Test for Entrapment
Constitutional law also supports an entrapment defense. Police cross the line from detection to unconstitutional entrapment when they encourage a person to do something the person would not normally do absent the encouragement. The Supreme Court in Jacobson v U.S., 503 U.S. 540, 548 (1992), held that "Government agents may not originate a criminal design, implant in an innocent person's mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute." Another Supreme Court case Mathews v. United States, 485 U.S. 58, 63 (1988), held that a defendant has a valid entrapment defense when (1) government induced the crime and (2) the defendant lacked the predisposition to engage in the criminal conduct. When a defendant shows that police entrapped the defendant under this test, the court should ordinarily dismiss the solicitation to prostitution charge.
Examples of Entrapment
Entrapment defenses depend on case-by-case examination of all the circumstances. A permissible police detective act in one case may be impermissible entrapment in another case, depending on the context and circumstances. Few, if any, bright lines exist. Generally, though, the stronger and more bold the police inducement, the more likely their actions will constitute illegal entrapment. And likewise, the less of a predisposition the defendant exhibited, the more likely the police actions will constitute illegal entrapment. Here are examples tending to show police inducement and defendant lack of predisposition, in a solicitation to prostitution entrapment:
● the defendant has good character, no criminal record, and no record of behaviors approximating solicitation to prostitution, but is in an inebriated, emotional, or another vulnerable state of mind or condition;
● the defendant makes no effort to search for prostitution services but instead only incidentally encounters undercover police prostitution offers in the course of other lawful activity;
● undercover police reach out to the defendant despite the defendant's lack of any indication of interest in prostitution, to make their offer of prostitution services;
● the outreach of undercover police is unusually explicit and enticing, of the sort that persons with no predisposition might find harder to resist, includes financial incentives, manipulates the defendant's psychology, or is extortionate through threats of violence or embarrassment;
● the defendant declines the initial undercover police offers of sex for compensation, exhibiting no predisposition to engage in the illegal activity;
● undercover police urge and exhort the defendant to reply to their offer of sex for compensation, after the defendant declines any interest; and
● undercover police urging and exhortation gradually overcomes the defendant's expression of not having any interest.
Other Defenses to a Prostitution Crime Charge
Entrapment, though a potentially strong defense in any case involving a police setup and sting operation, is not the only defense to a Texas solicitation to prostitution crime. Your retained Board Certified criminal defense attorney may succeed in establishing other defenses, either showing a gap in the prosecution's proof of all elements of the charge or raising constitutional rights that bar evidence supporting the charge. Other potential defenses to solicitation to prostitution include the following:
● that the parties never reached any agreement for sex in return for pay. Texas Penal Code Section 43.021 defines solicitation to prostitution as offering or agreeing to pay a fee for sex. If the prosecution's allegation is that the defendant accepted an undercover police offer and thus agreed, the prosecution must prove the defendant's conduct constituting agreement. In the absence of evidence of agreement, a charge in that form must fail;
● that the defendant did not knowingly engage in the conduct constituting the solicitation to prostitution crime. Texas Penal Code Section 43.021 defines solicitation to prostitution as knowingly offering or agreeing to pay a fee for sex. A defendant who mistakenly accepts such an offer, believing the offer to be for something other than sex, or who offers to pay for something other than sex, has not shown the requisite state of mind or knowledge to support the solicitation to prostitution crime;
● that the police had no probable cause to arrest and search the defendant for the alleged solicitation to prostitution crime. The Fourth and Fourteenth Amendments generally require police to have probable cause for an arrest and search, in the absence of which the court may bar any resulting evidence and dismiss the charge if the constitutional violation leaves the prosecution without admissible evidence; or
● that the police had no reasonable suspicion for an investigatory stop to ask the defendant questions or frisk the defendant for evidence of a crime including the solicitation to prostitution crime. If the investigatory stop led to the discovery of probable cause to arrest on solicitation of prostitution, and the police had no basis for an investigatory stop, then the court may bar the resulting evidence, dismissing the case if the violation leaves the prosecution without admissible evidence to support each element of the charge.
Texas Has Increased Penalties for Prostitution Crime
The question of entrapment and other potential defenses is especially important now that Texas has increased the penalties for prostitution crimes. Prostitution and solicitation to prostitution were once Texas misdemeanors for first and second offenses, assuming that the prostitute was not a minor. Prostitution and solicitation to prostitution were felonies in the third degree only on a third or subsequent offense.
The offense levels for prostitution remain misdemeanors for a first and second offense and a felony for a third or subsequent offense. First-offense prostitution is a Class B misdemeanor punishable by up to 180 days in jail and a $2,000 fine, while second-offense prostitution is a Class A misdemeanor punishable by up to one year in jail and a $4,000 fine. Third or subsequent offense prostitution is a state jail felony punishable by a jail sentence of from 180 days to two years and up to a $10,000 fine.
The Texas legislature significantly increased the penalties for solicitation to prostitution, now making those penalties significantly greater than the penalties for prostitution. While first-offense solicitation to prostitution was previously a Class B misdemeanor punishable by up to 180 days in jail, first-offense solicitation to prostitution is now a state jail felony punishable by up to two years in jail and a $10,000 fine. Second-offense solicitation to prostitution is a third-degree felony punishable by from two years to ten years in prison and the same fine. In short, if you face solicitation to prostitution charges, you should retain a skilled and experienced Board Certified criminal defense attorney to fight the charges in your best possible effort to avoid the crime's serious penalties.
Other Consequences of Solicitation to Prostitution
The criminal punishments for a conviction on solicitation to prostitution aren't your only concern. Collateral consequences to convictions in general, and to solicitation to prostitution convictions in particular, can be serious as well. You may, in other words, succeed in mitigating your criminal sentence with the help of your Texas Board Certified criminal defense attorney. But if you are not also attending to the conviction's collateral consequences, you may find yourself in dire straits despite having avoided the worst of the potential criminal penalties. A solicitation to prostitution conviction can turn your life upside down. Even a solicitation to prostitution charge, short of a conviction on the charge, can result in serious consequences, especially if you have not enlisted your Board Certified criminal defense attorney to address those collateral issues. Any of these other issues could seriously affect you:
● impacts on your family, including separation or divorce from your spouse and loss of child custody because of the relationship breach and potential sexual abuse danger a conviction could represent;
● impacts on your employment, including both termination of or suspension from your current employment and difficulty finding new employment because of the conviction or pending charge;
● denial of or discipline against your professional, business, or trade license because of the danger to the public, embarrassment to the profession, or unfitness for practice your charge or conviction represents;
● problems securing an apartment or other housing, loans or credit, membership privileges, or other necessities, amenities, and advantages because of your criminal record;
● impacts on your government or private security clearance, necessary for your job, career, or other service, because of the disrespect for law and dishonesty or immorality a conviction represents;
● if convicted of a felony solicitation to prostitution charge, loss of your right to vote and to a firearms license, including loss of any employment dependent on a firearms license; and
● if your conviction includes a nuisance abatement on your property because of the public harm associated with prostitution crime, loss of your property to that abatement order.
Procedures in Solicitation to Prostitution Cases
Criminal law procedures are important in the successful defense of a solicitation to prostitution charge, just as criminal procedures are important in other cases. If you have already faced arrest on a solicitation to prostitution charge, then you are likely already familiar with the arrest procedures. Arrest procedures include transport to the station for booking, hold for court arraignment, disclosure of the charge and entry of your not guilty plea at arraignment, and your release on bail. A preliminary examination may follow at which your retained Board Certified criminal defense lawyer can confirm whether the prosecution has the required evidence to maintain the solicitation to prostitution charge. Pretrial procedures may include your defense attorney's motion to suppress inadmissible evidence, seeking dismissal of the charge, and alternatively plea bargaining. Trial includes your defense attorney's cross-examination of prosecution witnesses and presentation of your entrapment or other defense evidence. Post-trial motions and appeals may reverse a conviction for procedural errors.
The Role of a Board Certified Criminal Defense Lawyer
Fortunately, with the above defenses potentially available to you, you may well avoid many or even all of the above criminal penalties and collateral consequences that can make a solicitation to prostitution charge and conviction so hard on one's life. Your Board Certified criminal defense attorney has many things to do that may positively influence the outcome of your charge. An effective defense strategy may not depend on a single miracle long shot but instead on many small steps the accumulation of which is to undermine the prosecution's evidence. Here are a few of the actions that your attorney may take seeking dismissal of the charge or your acquittal at trial:
● advise you regarding your constitutional rights so that you do not make inculpatory statements and admissions against your interest;
● appear at arraignment to ensure your proper not guilty plea and to ensure that you obtain reasonable bail permitting you to lead a relatively normal life while participating in your criminal defense;
● appear at preliminary examination to learn the nature of the prosecution's evidence and to seek dismissal if that evidence does not satisfy all elements of the charge;
● obtain other discovery of the prosecution's inculpatory and exculpatory evidence to prepare pretrial motions to suppress and for trial;
● determine whether police or the prosecution violated your constitutional rights giving you grounds for a motion to suppress;
● represent you in plea negotiations and at trial, including cross-examining prosecution witnesses while presenting your own evidence; and
● evaluating, drafting, and arguing appeals seeking reversal of any conviction on errors in the proceedings affecting your substantial rights.
Premier Criminal Defense Representation
Your best move to defend solicitation to prostitution charges induced through a police set up is to retain premier Houston criminal defense attorney Doug Murphy. Attorney Murphy is one of only two Texas lawyers Board Certified in both Criminal Law by the Texas Board of Legal Specialization and DWI Defense by the National College for DUI Defense. Attorney Murphy is also past President of the Harris County Criminal Lawyers Association, has been recognized in the US News & World Report list of the Best Lawyers in America from 2013-2022, and was named as a Texas Super Lawyers by Thomson Reuters in Texas Monthly in 2009 and from 2013-2022. Call (713) 229-8333 or go online now to retain the best available defense representation.