Solicitation of a Prostitute – Va. Code 18.2-346
If you are reading this, you may fall into one of the following categories:
- you have recently been charged with solicitation of a prostitute (18.2-346) or use of a vehicle (18.2-349) or a related prostitution offense;
- you are a lawyer searching for information, case law, or immigration questions; or
- you are researching Virginia criminal laws, as a student, citizen, or instructor.
Below, you will find information pertaining to the main elements of the offense, penalties if convicted, possible defense theories, prior case law, immigration issues, and ways it may be possible for a local Fairfax criminal attorney or Northern Virginia defense lawyer to meet the client’s goals.
Prostitution Sting Operations in Northern Virginia
How are people caught?
In Fairfax County and other Northern Virginia localities, law enforcement agencies may create fake “escort” ads online. The media, including The Washington Post, has picked up on the rise in arrests, as well as police-operated prostitution sting operations. An undercover officer will pose as an escort. An ad on certain websites will provide a phone number. When contacted, the undercover escort may tell the caller to meet at a hotel. Once the police think they have enough evidence, the male officers generally will enter the room and make an arrest.
What is the Virginia Law on Solicitation of a Prostitute?
Virginia Code 18.2-346 (B) states, in-part:
Any person who offers money or its equivalent to another for the purpose of engaging in [certain sexual acts] and thereafter does any substantial act in furtherance thereof is guilty of solicitation of prostitution . . . (bold and emphasis added)
Something of value — money or its equivalent — must be involved; second, there must be some agreement or offer to exchange the money for sexual services. Those sexual services include adultery, fornication, oral sex, and anal sex. The final key element of this offense is the substantial act requirement. The prosecution must prove that the defendant took some action after the offer. That action must be sufficiently related or tied to following through with the offense.
Solicitation of Prostitute Penalties
Solicitation of prostitution is a Class 1 misdemeanor (except in cases involving minors, see below). Class 1 misdemeanor convictions are punishable by up to a year in jail, and a fine in the amount of up to $2,500, or both. This is the maximum penalty by law, but other consequences are worth noting:
Permanent Arrest Record (loss of job, etc)
In Virginia, any arrest results in a permanent record. The only way to clear that record from public view is through a process called expungement. Expungement is only possible if the charge is resolved in one of several ways (read more about expungement). If the case results in a guilty plea or a conviction of the charge, the arrest record will not qualify for expungement.
Immigration Issues: Deportation
For a large number of defendants, immigration problems may arise. Crimes of moral turpitude are viewed as more serious and could result in deportation. See the immigration section below for more details.
If the solicited prostitute is a minor, then the exception to the Class 1 misdemeanor status kicks in and elevates the crime to either a Class 5 or Class 6 felony, depending on the age of the minor.
Possible Defense Theories to Solicitation of a Prostitute
Insufficient evidence, or failure of proof, is perhaps the most common defense.
For example, the Commonwealth may not have evidence of an offer to exchange something of value (money or its equivalent). In other cases, there may be insufficient evidence to establish an act in furtherance of the overall offense. Factors the prosecution may try to rely on in making their case:
- statements asking whether or not certain services are available. These are about sex acts, including well-known lewd terms (“blow job”);
- evidence of the defendant driving to or walking to an ATM to withdraw funds, following a verbal agreement or offer;
- admissions of guilt or remorse following arrest;
- actions such as removing clothing;
- showing condoms or other sexual related items; and
- anything else reasonably related to show intent to follow through.
Two cases in Virginia are important to be aware of, if you are a Virginia criminal lawyer representing someone accused of solicitation of a prostitute.
Example of a case illustrative of factors leading to enough evidence to show a substantial act in furtherance :
Bakran v. Commonwealth
An officer working undercover was on a sidewalk next to a hotel parking lot in Norfolk, Virginia. She was ordered to observe any type of illegal activity. Wearing just a tank top and jeans, the defendant entered the parking lot and motioned her to come closer to the vehicle.
Then, the following conversation ensued (in my opinion the reason the conviction was affirmed):
Defendant: What are you doing here?
Officer: Just hanging out.
Defendant: Oh, Would you like to take a ride?
Officer: No. I don’t get into people’s cars. It’s not safe.
Defendant: Well, what are you out here doing?
Officer: Just hanging out. Why? What are you looking to get into?
Defendant: Well, what are you looking to get into?
Officer: I’m just out here hanging out.
Defendant: How much for a blow job?
Officer: How much you got?
Defendant: $ 40.
Next, the defendant asked if she was a cop (she said “no”), and he asked if he could touch her breast. She said yes, and he reached and touched her breast, followed by a touching of his groin, which was only after defendant’s request for her to do so. At that point, the defendant was invited to a hotel room. As soon as he entered the room, he was arrested.
Example of a case lacking sufficient evidence to prove a substantial act in furtherance :
Fine v. Commonwealth
The defendant approached an undercover decoy prostitute. He asked for oral sex, and the officer then replied with the question: “is $20 okay?” after which she told him to meet her near a secluded area. Instead of doing so, he drove away from the area. After being convicted of using a vehicle to promote prostitution, the conviction was reversed, because the evidence was lacking. The court stated that although there was a conversation about trading money for sexual acts, no evidence was found to support a substantial act in furtherance.
Example of an (old) case lacking sufficient evidence to prove a substantial act in furtherance :
Adams v. Commonwealth
An undercover law official visited a parlor to obtain a massage. The defendant told the officer “extras” were available. The defendant stated intercourse was $50. The appeals court noted that the evidence was not sufficient to sustain a conviction because no act of adultery or fornication took place…and the Commonwealth would have needed evidence to show an attempt to commit the act of prostitution. In sum the court stated the element of an offer to engage in intercourse was present, but not the act in furtherance.
Criminal Law Prostitution and Solicitation Immigration Issues
The big problem: crimes of moral turpitude. Immigration issues involve an overlap of federal and state law.
Conviction of a crime considered to be involving “moral turpitude” can cause major immigration issues, including:
• Prevention of an application for a visa or green card;
• Deportation of a visa or green card holder;
• Failure to show good moral character when applying for U.S. citizenship.
The federal Board of Immigration Appeals has described moral turpitude as “nebulous” and
“refers generally to conduct that shocks the public conscience . . . contrary to the rules of morality . . .”
If applying for a U.S. Visa or a lawful permanent residence status, the government may deem one inadmissible. See the Immigration and Nationality Act 212(a).
Fortunately, Northern Virginia defense attorneys, including our principal Fairfax criminal lawyer, understand how to accomplish the goals of clients with immigration status issues and can create a strategic action plan for resolving the case in the best way possible.
Can a Fairfax, Arlington, Prince William or other Northern Virginia Criminal Lawyer Address Criminal and Immigration?
Each case is unique, as is each client. The first piece of information our Fairfax defense attorney will want to know in this context is the status of the client. Do they have a green card? Is it unexpired or expired? Is an application for a green card in the process of review?
The second critical piece of information a Northern Virginia Immigration and Criminal Lawyer will examine is the law itself. This means he or she will read the letter of the law, in order to determine whether or not it is likely treated as a crime involving moral turpitude.
Finally, an action plan is important. For example, below is a hypothetical list of desired outcomes (this list does not pertain to any specific case or charges, but is only for educational, illustrative purposes):
- Best Outcome: the charge is dropped (nolle prosequi). This can happen for a number of reasons.
- Best Outcome 2: the case goes to trial, and the defendant is found not guilty. Going to trial is a risk: it is important to find an attorney who is knowledgeable when it comes to the tendencies of each judge as well as prosecutor.
- The prosecutor may amend the charge to another offense. With careful research and planning, it may be possible to reach an agreement to plead guilty to a completely different offense: one not involving moral turpitude. Example: it may be wise to plead guilty to trespassing or disorderly conduct, if the prosecutor moves to amend a larceny (theft) or solicitation of prostitution charge.
Self-Representation is a Poor Choice
Some violations of the law do not always require representation by an attorney (minor non-moving traffic tickets, for example). If charged with any crime of moral turpitude, and regardless of your status as a citizen, non-citizen, it is essential to consult a criminal lawyer in your locality (where the charge is pending), and in some cases (your criminal lawyer will tell you, based on your unique case), an immigration attorney.
Vincenzes Law, PLLC, is a Northern Virginia Criminal Law Firm in Fairfax, Virginia. We have successfully resolved cases for clients accused of crimes of moral turpitude, including fraud, larceny, identity theft, gambling, money laundering, spousal abuse, child abuse, aggravated assault, drug manufacturing and distribution, and numerous others. All consultations are no-obligation, no-pressure, and no-cost.
Contact us at 703.665.3719
or online for analysis by award winning Fairfax criminal lawyer, Brenton D. Vincenzes*
*we do not promise or guarantee we will review your case. If we believe we may be able to assist, a reply by phone or email may be expected within 1 hour to up to 2 days. Furthermore, Vincenzes Law limits total clients and may not be able to assist you due to high volume.
Case Law References
 Bakran v. Commonwealth, 57 Va. App. 197, 200-201, 700 S.E.2d 471, 472, 2010 Va. App. LEXIS 410, *2-3 (Va. Ct. App. 2010)
 Fine v. Commonwealth, 31 Va. App. 636, 642, 525 S.E.2d 69, 71, 2000 Va. App. LEXIS 135, *8 (Va. Ct. App. 2000)
 Adams v. Commonwealth, 215 Va. 257, 257, 208 S.E.2d 742, 743, 1974 Va. LEXIS 269, *1 (Va. 1974)
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