Is This Thing On? The “Just Joking” Solicitation of Prostitution Defense
Generally, when you tell a joke that no one gets, the worst that usually happens is you have to explain the joke. Embarrassing? Maybe. But when you joke around with an undercover Washington, D.C. police officer posing as a prostitute, the consequences of being unfunny can be more severe. In the case of one defendant, it meant being arrested and charged with solicitation of prostitution.
As a Washington, D.C. solicitation of prostitution lawyer, I meet with a lot of clients who have been caught up in D.C. prostitution stings. Until recently, I thought that I had heard every defense. However, a recent defendant offered an explanation I haven’t heard before: He was just joking. Was this a new defense for me? Yes. But was it a legally sound defense? Absolutely. And the government was not amused.
To be convicted of solicitation of prostitution in Washington, D.C., the government must prove beyond a reasonable doubt that a defendant, intended “to invite, entice, offer, persuade, or agree to engage in prostitution or address for the purpose of inviting, enticing, offering, persuading, or agreeing to engage in prostitution.” In simple terms, that means that a defendant must agree to pay money to someone for sex.
The way these cases are usually built, is that an MPD officer poses as a prostitute, and tries to get a defendant to agree to pay a certain price for a certain sexual act. As soon as the magic words are spoken, the officer signals an arrest team hiding nearby, who swoops in and handcuffs the unsuspecting customer. No recording devices are used, and the entire charge and prosecution are based on what the undercover officer says happened.
Often, D.C. criminal defense lawyers will attempt to defend a client by convincing the judge that the undercover officer got the defendant’s words wrong. Sometimes that works and sometimes it doesn’t. In my recent case, however, my client testified that everything the officer said was correct. He did approach her. He did talk about sex, and he did say that the price was right. And then he started to walk away. But even with those admissions, the judge found my client “not guilty.” And here’s why.
While my client admitted that he said the words that are necessary to commit the crime of solicitation of prostitution, he never had the intent to actually engage in the act he discussed. He told the court that he works in the area where he was arrested, and sees the prostitutes milling about. He is familiar enough with them that he often jokes around about hiring them. Call it workplace humor. It just so happens that on this occasion, his jokes fell flat. Maybe they fell flat because he isn’t very funny, but it didn’t help that the recipient was an undercover MPD officer with very little sense of humor.
The judge may not have thought my client was very funny either, but she recognized that, to be guilty of solicitation of prostitution, you have to be serious about following through. The charge lends itself to this type of defense, because it is a crime based entirely on a conversation. Context matters, and the judge believed that the officer may have misinterpreted my client’s intention. After all, she was the only witness, and there was no recording. And “reasonable doubt” is a high standard.
If there is a lesson to be learned from my recent case, (besides that a D.C. street corner may not be the best place to test out your new material), it’s that, just because a defense may be new, it doesn’t mean it isn’t valid. Your Washington, D.C. solicitation of prostitution lawyer should be creative and flexible in defending your case. If you have been arrested for a prostitution-related offense, contact Jay Mykytiuk for a consultation.