Solicitation of Prostitution Solicitation, Prostitution, Pimping and Pandering
By Vince Imhoff, Esq. & Dan Rhoads
In 1993, an undercover Beverly Hills police officer posing as a wealthy Japanese businessman contacted Heidi Fleiss. He offered to pay $6,000 so that Fleiss would send four women to meet him and some colleagues at a hotel. In June, Fleiss sent the women to the Beverly Hills Hilton, where the men had a room. The undercover agents posed as clients and specifically asked for sex.
Once the women agreed, other agents stormed in from the adjacent room and arrested the women, whose actions the police had recorded. The next day, Fleiss was arrested and charged with, among other things, five counts of pandering. She pled not guilty to all counts but was indicted. At trial, Fleiss raised a defense of entrapment; and the jury was split. In a compromise, the jurors voted to convict Fleiss for three of the pandering counts. The judge sentenced her to three years in prison and a fine of $1,500.
What is pandering?
In California, pandering is a felony punishable by three, four, or six years in the state prison. Cal. Penal Code 266i(a). The most basic pandering offense is “procur[ing] another person for the purpose of prostitution.” 266i(a)(1). The statute also prohibits causing, inducing, persuading, or encouraging others through promises, threats, violence, or any scheme to become involved in prostitution. 266i(a)(2)-(6).
Pandering versus Pimping
A person who arranges a meeting between a prostitute and a john and who takes a cut of the prostitute’s revenue can be charged with both pimping and pandering. In California, pimping means knowingly receiving compensation from another’s prostitution. The California law describes pimping in two ways.
First, “[A]ny person who, knowing another person is a prostitute, lives or derives support or maintenance in whole or in part from the earnings or proceeds of the person’s prostitution, or from money loaned or advanced to or charged against that person . . . is guilty of pimping.” Cal. Penal Code 266h(a). So, a person who makes any part of his or her living through revenues generated by prostitution is a pimp in violation of the law.
Second, any person “who solicits or receives compensation for soliciting for the person is guilty of pimping.” Id. This section means that a person who works to find clients for prostitutes is illegally pimping.
Sex in the Champagne Room?
In the 1990s, Steve Kaplan’s Gold Club in Atlanta was the most illustrious gentlemen’s club in the country. Kaplan cultivated the club’s allure by establishing a client base full of superstar athletes, like former basketball players Patrick Ewing and Dennis Rodman and baseball player Andruw Jones. Kaplan sought the loyalty of those athletes by arranging sex between them and the club’s dancers.
In 2001, federal prosecutors charged Kaplan and many of his accomplices, including dancer Jacklyn Bush, with violations of the Racketeer Influenced and Corrupt Organizations (RICO) Act. Included in the predicate offenses were violations of most of Georgia’s anti-prostitution statutes.
One story about Kaplan’s business methods involves Rodman. A former dancer, Amanda Pappas, testified that she was paid $500 to have sex with Rodman and Bush. A limousine took the retired athlete and the two dancers to his hotel and later returned them to the club. Rodman paid Pappas in the club’s “gold bucks,” which Bush exchanged for cash.
The club’s operations, including soirees like the one with Rodman, implicated both Bush and Kaplan in various crimes. By performing a sexual act for money or other items of value, Bush committed prostitution under Georgia law. Ga. Code 16-6-9. Kaplan was guilty of keeping a place of prostitution because he exercised control over the club, which offered seclusion or shelter for the practice of prostitution. 16-6-10. By gaining the patronage of famous athletes, which raised the profile of the Gold Club, Kaplan knowingly received a thing of value from a prostitute, “without lawful consideration, knowing it was earned in whole or in part from prostitution,” in violation of Georgia’s pimping law. Ga. Code 16-6-11. Kaplan was also guilty of pandering.
Contact with the Customer
Managers at a California gentlemen’s club fared better than Kaplan when a court decided that no prostitution was involved in their business. Brent Wooten, a manager at the Flesh Club, was charged with pimping and pandering after undercover officers paid to watch two of the club’s strippers perform sex acts on each other. The charges were dropped when the court found that no prostitution had occurred.
The case turned on two definitions. First was the definition of ‘prostitution’ as including “any lewd act between persons for money or other consideration.” Cal. Penal Code 647(b). Then, based on case precedent, the court held that, “a lewd act, an element of prostitution, requires touching between the prostitute and the customer, even if the customer is simply an observer of sexual acts between two prostitutes.” Wooten v. Superior Court, 93 Cal. App. 4th 422, 431 (4th Dist. 2001). The court concluded that, “because there were no lewd acts, i.e. no touching between the dancers and the customers, the conduct alleged herein failed to constitute ‘prostitution.’” Wooten, 93 Cal. App. 4th at 436.
The prosecution answered that one of the dancers had offered to perform a sex act on one of the officers. The court agreed that such an offer, if true, would constitute prostitution; but the defendants/club managers were charged with pimping and pandering. The court ruled, “that offerstanding aloneis insufficient to support a charge of pimping or pandering because there was no evidence that defendants knew that [the dancer] had made such an offer.” Wooten, 93 Cal. App. 4th at 438.
In a nod to strip clubs, the legislature added a provision stating that committing prostitution “does not include sexual conduct engaged in as part of any stage performance, play, or other entertainment open to the public.” Cal. Penal Code 653.20(a).
Solicitation originally meant an offer of sexual services by a prostitute. However, modern courts have held that “a statute making it an offense to solicit an act of prostitution is equally applicable to a man soliciting a prostitute as to the prostitute herself.” 63 Am. Jur. 2d Prostitution 9.
Some statutes clearly state which behavior they prohibit. On the eve of Super Bowl XXXIII, Falcons safety Eugene Robinson drove to Key Biscayne and offered an undercover officer $40 for oral sex. Under Florida law, Robinson was guilty of an attempt “to purchase the services of any person engaged in prostitution.” Fla. Stat. 796.07(2)(i).
California has a blanket solicitation statute, which applies both to prostitutes and their clients. Reyes v. Municipal Court, 117 Cal. App. 3d 771 (2nd Dist. Year). The misdemeanor of solicitation has three elements. First, a person must have specific intent to engage in an act of prostitution. Second, the person must “manifes[t] an acceptance of an offer or solicitation to so engage.” Cal. Penal Code 647(b). Finally, some act must be done “in furtherance of the commission of an act of prostitution.” Id.
Act in Furtherance of Prostitution
When a statute requires an act in furtherance, the corroborative act can become an issue to dispute at trial. Most courts agree that, “the clarifying or corroborative act need not occur after the agreement was made.” In re Cheri T., 70 Cal. App. 4th 1400 (2nd Dist. 1999). Merely getting into a car before an offer is made is not an act in furtherance, but telling a driver to drive to a dark place is. Id. A masseuse who quotes prices for sex acts during a massage, but leaves on her clothes and does not actually perform any sexual acts, has not done an act in furtherance of prostitution. Adams v. Commonwealth, 208 S.E.2d 742 (Va. 1974).
Effects of Prostitution Charges
Prostitution and solicitation are misdemeanors, but pimping and pandering are felonies. If a minor under 16 is involved in the offense, the defendant might have to register as a sex offender.
A person who wants to fight prostitution charges needs a dedicated criminal defense attorney who will make the prosecution prove all the elements of the crime charged. The worst effect of a conviction on a prostitution charge is usually the stain of such a lurid offense on a person’s criminal record.
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