If you purchase sex in Texas, you will be facing significantly steeper consequences very soon. Texas is increasing punishments for customers of the “oldest profession in the world” beginning September 1 and will be the first state to make johns – the purchasers of sex – subject to felony prosecution.
Currently, first-time purchasers of sex are subject to punishment under Texas Penal Code 43.02, which makes a first offense a Class “A” misdemeanor. A subsequent offense for purchasing or attempting to purchase sex is currently a State Jail Felony.
The new statute will increase the penalties for both first time and subsequent convictions. Under the new statute, a first offense is a State Jail Felony and a subsequent offense is a Third-Degree Felony. The stated purpose of the bill has been to attempt to decrease the demand for prostitution in an attempt to crack down on human trafficking.
Human trafficking is indeed a major problem in Texas and the Houston area. But most research shows that punishments do not affect behavior, and turning would-be johns into convicted felons is unlikely to have the effect the new law’s proponents intend. A much wiser and humane approach would be to enact a scheme where prostitution is legalized and regulated. Many countries have had success implementing these schemes. If the new laws proponents think they will do away with the world’s oldest profession by increasing the penalties, they are very much mistaken.
Although the punishments will increase, I do not anticipate any changes in the way that these offenses are investigated or prosecuted. Criminal defense attorneys know that in Houston, most prostitution cases that result in the arrest of a john are “sting” operations where an undercover officer will pose as a prostitute and wander around certain parts of town known for prostitution. The undercover officer will then attempt to strike up a conversation with a potential john and offer sex. If the person agrees, he will typically be immediately arrested. Johns are also arrested in strip clubs frequently, but the vast majority of john prostitution cases take place on the street in the Houston area.
Johns who fall into the trap will now have a case in felony court, rather than misdemeanor court. Fortunately, these cases can often be successfully defended. The first thing a criminal defense attorney hired in a prostitution case needs to do is obtain the evidence. In a typical john case, that will include an offense report with the officer’s version of the story (which any criminal defense attorney knows is often inaccurate) and audio or video of the sting itself. Very often – contrary to what an officer claims – there is no clear agreement to exchange sex for value. It is critical to obtain a recording of the incident because if it turns out to be vague, the case could be dismissed.
If the evidence against a defendant is solid, then often, a criminal defense attorney will attempt to obtain a pre-trial diversion. A pre-trial diversion is an agreement with the District Attorney’s Office to dismiss the case if certain conditions are met. Pre-trial diversion programs are discretionary, meaning that it is up to the District Attorney’s Office whether not to offer one. One potential downside to making first time prostitution cases felonies is that pre-trial diversions are sometimes more difficult to obtain in felony cases. In Houston, it is far easier to obtain a pre-trial diversion in a misdemeanor case than a felony case. Hopefully District Attorney’s offices in the Greater Houston area will treat these new cases sensibly.
Although pre-trial diversion cases may be more difficult to obtain, one potential advantage might be the possibility of submitting a grand jury packet. A grand jury packet is only an option in a felony case. If a grand jury packet is successful, it will lead to the dismissal of a case.
On balance, this new law is a step backwards. In the Houston area, a large percentage of those arrested and accused of being johns are first time offenders and it is difficult to imagine that raising the consequences will have any meaningful impact on human trafficking.
Criminal defense lawyer Jose Ceja has defended countless prostitution cases in the Houston-area and is an excellent choice if you are charged with prostitution. Call today for a free consultation.