Defenses available to a defendant in an offense for prostitution are few in number. Some of them are;
- Insufficient evidence
- Lack of trustworthy evidence
- Legal impossibility
Entrapment is a commonly used defense in an offense of prostitution because most of the arrests in prostitution cases or solicitation cases are made with the help of under cover agents. These agents project themselves as agents or pimps and trap the offenders by luring them to engage in prostitution. At least in some cases, law abiding persons also may be unfairly lured in to the trap.
Legal impossibility is another defense available to an accused in an offense of prostitution. This can be alleged when the intended acts would not amount to a crime. This defense is used in the sexual acts engaged through electronic media. When a person engages in sexual conversations to a fictitious minor person who is actually an under cover agent, that person may raise the defense of legal impossibility.
In a prosecution based on illicit sexual conduct with a minor, it is a defense that the defendant reasonably believed that the person with whom the defendant engaged in the commercial sex act had attained the age of 18 years.
Lack of trustworthy evidence is an effective defense in certain states where there is no recorded evidence of the agreement to engage in prostitution. In certain states the undercover officers are wired but they don’t record the conversations between the cop and the prostitute or pimp. In such a situation it will be difficult to prove that the defendants have agreed to engage in the act of prostitution. The jury may be reluctant to accept the charge without hearing the conversation.
Insufficient evidence is raised as a defense when the issue is with regard to the evidence not having been produced. The evidence produced will be inadequate to convict a person for the offense of prostitution. Not all of the elements would be proved in such cases. It may be raised where there wasn’t a clear and definite agreement, but only just an ambiguous conversation took place. In another case it may be that there was an agreement to engage in sex, but no agreement that it would be for money or other consideration. Another defense may be that there was no act in furtherance of the agreement to engage in sexual activity. It may also be contended that the solicitation was only a joke and there was no specific intent to engage in sexual intercourse or any other lewd act.
It is also an affirmative defense to prosecution of prostitution that during the time of the alleged commission of the offense, the defendant was a victim of human trafficking.
Mistake is also a valid defense in the prosecution of prostitution. If a person specifically did not intend to engage in a sex act, s/he may not be convicted for prostitution. Responding to a call girl or other service to secure a date does not amount to prostitution or solicitation. If a person is found in an area known for prostitution or in a massage parlor, that person cannot be prosecuted for prostitution. The defense of mistake can be raised by the accused in such a situation as it is not necessary that s/he was involved in prostitution.
However, it is not a valid defense to allege that the place of prostitution was licensed for any other purpose other than prostitution. Also, the fact that the act or the attempted act of prostitution that is promoted occurs at a place other than the site of the offense is not a valid defense.