Is entrapment a defense for solicitation of prostitution?

By Jose Ceja
Managing Attorney

Due to the nature of the offense of solicitation of prostitution, most arrests are the result of a police sting operation, which means that the police were actively involved in creating evidence of the offense. In the Houston area, law enforcement agencies run stings in a variety of ways. But because all stings involve a law enforcement officer, that raises the question of whether it is possible to raise the defense on entrapment against an arrest for solicitation of prostitution. This blog explains why entrapment may be a defense to the crime of solicitation of prostitution but why it may be a difficult defense to use successfully. 

In the Houston area, law enforcement agencies regularly run sting operations to catch the alleged buyers of sex. These stings take many forms. One of the most common is that the police will set up a fake ad on an Internet forum where posts advertising prostitution are common. When a man responds to the post and shows up at the location (typically a hotel that has been outfitted with cameras), the undercover police officer and the man will agree on a price, and then the person will promptly be arrested. Another common sting is a street arrest where a police officer will pose as a street walker and attempt to come to an agreement to exchange money for sex with men. 

No matter what kind of sting operation the police employ, the police officer will attempt to facilitate an agreement to exchange money for sex, which is essentially what the offense of prostitution requires. But at what point does the police officer cross the line by engaging in a conversation that would amount to a crime? For non-lawyers, entrapment is a concept that may not be clear but suggests that the police are not allowed to participate in a conversation at all. But the reality is that in Texas, the entrapment defense is somewhat limited. 

Under Texas Penal Code 8.06 it is a defense to solicitation of prostitution (or any criminal offense) that the defendant engaged in the conduct charged because he was induced to do so by a law enforcement agent using persuasion or other means likely to cause persons to commit the offense. Under the statute, “merely affording a person an opportunity to commit an offense does not constitute entrapment.” Some cases suggest that a person cannot have already been predisposed to engage in the conduct that is charged. 

Under the statute, if an undercover police officer posing as a prostitute is offering her services, that would probably not be enough to raise an entrapment defense, particularly if it is clear from the facts that a defendant may have already been disposed to engage in the offense of solicitation of prostitution. However, it is not difficult to imagine a scenario where an undercover officer is insistent and appears to attempt to convince the defendant to engage in the offense of prostitution, even where the defendant expressed some reluctance. 

Of course, the availability of the defense of entrapment in a prostitution case will depend on the facts and the nature of the conversation between the defendant and undercover police officer. If a case has a potential entrapment defense, a criminal defense attorney must decide the best way to present this defense. More likely than not, if a criminal defense attorney tells the prosecutor that there may be a valid entrapment defense, that will not cause the prosecutor to dismiss the case. Instead, a prosecutor will just add a note to his file that the defense is planning on raising an entrapment defense, and use that knowledge to be better prepared for trial. For this reason, it is rarely productive to share trial defenses with the prosecution in prostitution cases. 

Compared to other defenses available in criminal cases (like self defense or even the defense of necessity), entrapment is not commonly employed. Where it is used, it is typically raised at trial. If the facts (typically the recordings and testimony of the law enforcement office who made the prostitution arrest) support an inference that law enforcement attempted to persuade a defendant to commit a crime, then an entrapment defense could appear in jury instructions that a jury will use to decide whether a person is guilty or not guilty of a criminal offense. 

Due the limited definition of entrapment, it is rarely used a defense in prostitution cases, but depending on the facts, it could be an option, and an effective criminal defense attorney should consider all possible defenses. The goal is always to obtain a dismissal or an acquittal of a solicitation of prostitution charge. If you have been charged with solicitation of prostitution anywhere in the Greater Houston area, call Ceja Law Firm today for a free consultation.

About the Author
Jose Ceja is the managing attorney of Ceja Law Firm. He has practiced law since 2007 and has devoted his career to the practice of criminal law. Mr. Ceja began his legal career as a felony drug prosecutor, where he prosecuted drug, gang, and violent offenses. Mr. Ceja has first or second chaired almost 100 trials, including murders, drug cases, DWIs, and assaults. In his career as a defense attorney, he has regularly obtained dismissals, not guilty verdicts, and grand jury “no bills” in a wide variety of cases.