The term prostitution does not denote an illegal sexual conduct per se. However, it is a reprehensible conduct which is prohibited by specific legislations. Prostitution is the performance of sexual intercourse for a fee[i]. It also denotes giving or receiving the body for sexual intercourse for hire or for licentious sexual intercourse without hire, or engaging in sexual activity as a business. Repeated or continuous action of prostitution is required for the offense of practising prostitution. Law prohibits prostitution to prevent acts or solicitations of prostitution resulting in the victimization of children
Earlier, law presumed that only a woman, and not a man, could be a prostitute. However, recognizing the impropriety of such a definition, many statutes have modified the definition of prostitution to include conduct of all persons, male and female, who engage in sexual activity as a business. The modern definition of prostitution also includes homosexual acts.
Monetary consideration is an essential prerequisite for the offense of prostitution. There is difference of opinion regarding the element of intent. Some courts have held that intent is not an essential element. This is because a person may knowingly offer to engage in or agree to engage in sexual conduct for a fee without having the intent to actually consummate the sexual conduct[ii]. Hence courts have held that the intent that must accompany future sexual contact need not accompany the offer or agreement to engage in sexual conduct and intent to consummate an agreement to engage in such an act is not an element of the offense.
Statutes prohibiting prostitution or solicitation do not violate any constitutional rights of privacy or free speech because speech is not protected where it is directed to inciting lawless action, or persuading someone to enter into an illegal arrangement[iii].
The offense of solicitation for prostitution includes three elements namely the accused’s solicitation of another, to engage in sexual activity the activity must be for hire. However, a defendant cannot be convicted of soliciting where it is the patron who requests or solicits sexual intercourse, and the defendant merely accepts such importunities[iv].
There are some specific offenses associated with prostitution namely “pandering,” “procuring,” “pimping,” and “promoting prostitution.” Pandering has been defined as intentionally maintaining a place where prostitution is habitually practiced and receiving, the earnings of a prostitute without lawful consideration. Procuring or inducing a female to become an inmate of a house of prostitution or to become a prostitute; or transporting a person from one place to another for the purpose of promoting the practice of prostitution is also an offense.
[i] State v. B Bar Enters., 133 Ariz. 99, 103 (Ariz. 1982).
[ii] Frieling v. State, 67 S.W.3d 462 (Tex. App. Austin 2002).
[iii] Yakima v. Emmons, 25 Wn. App. 798 (Wash. Ct. App. 1980).
[iv] State v. Swann, 142 Ohio App. 3d 88 (Ohio Ct. App., Hamilton County 2001).