California Penal Code § 647(b) prohibits one from willfully engaging in a sexual act in exchange for money or other goods or services (typically drugs). This seemingly broad definition does not include pimping and pandering, which are separately addressed (Penal Code § 266 and 266i) or indecent exposure (Penal Code § 314). The scope of § 647(b) includes both the prostitute and the customer, also known as a “john.”

A few definitions are helpful toward understanding exactly what is legal and illegal. A sexual act includes sexual intercourse or any lewd act. In turn, a lewd act means any act that involves touching the genitals, buttocks or a female breast with the intent to arouse or gratify sexually. “Willfully” means deliberately, but not necessarily with knowledge that the conduct is illegal.

When one solicits prostitution, such as at a strip club, massage parlor or on Craig’s List (as escort service, call girls or “girls looking to meet guys”), this is also a crime under 647(b), but often more difficult to prove. The difficult part for the prosecutor to prove is usually whether the invitation, offer, lure or advertisement was to engage in an exchange of sex for money or other goods or services. There must be some type of overt act, such as discussing money or drugs being exchanged for sex, withdrawing money from an ATM for sex, or driving to an agreed location for sex.

In other words, if one is merely in an area known to have prostitutes operating and one stops to ask a girl in a miniskirt for directions, this act alone is not a crime. Likewise, if the person wearing a mini-skirt in the same area waives to a passerby, this does not suffice to prove solicitation.