SB 1388-First, They Came for the Johns.....

         The current state of P.C. §647(b), California’s general prostitution/disorderly conduct statute, is that it treats the provision and consumption of commercial sex equally—i.e. both are punished the same way. Unfortunately, if SB 1388 becomes law, this could change drastically, to the severe detriment of both sex workers and their clients.

What the Bill Does

         The measure would amend P.C. §647(b) by creating two new subsections, P.C. §647(b) (1), which would criminalize the act of “agreeing to purchase” or the “purchase” of a “commercial sex act.” (“CSA”), and P.C. §647(b) (2), which would criminalize the act of “agreeing to perform” or the performance of the CSA.  Meanwhile, the bill would create P.C. §647(b) (3), which defines a commercial sex act (for purposes of either subsection) as “any lewd act between persons for money or other consideration.”

         Under the bill, anyone convicted of violating §647(b) (1) would be required to receive jail time regardless of whether the Court believed probation was appropriate.  Indeed, the bill calls for convicted customers to spend “not less than 48 hours of continuous confinement [in the county jail], nor more than six months” on a first offense, as well as a fine of one thousand dollars ($1,000). (Emphasis added).

         Normally, judges have the ability to suspend all or part of a misdemeanor sentence, but they won’t if SB 1388 becomes law. As set forth in the bill’s proposed new P.C. §647(k) (1) (a) “In all cases in which probation is granted, the court shall require as a condition thereof that the person be confined in a county jail for at least 48 hours of continuous confinement and pay a fine of at least one thousand dollars ($1,000), but not more than fifty thousand dollars ($50,000). A court shall not waive the requirement that a person who violates paragraph (1) of subdivision (b) shall be confined for at least 48 continuous hours in a county jail.” (Emphasis added).

         The bill doesn’t even try to explain why it believes the 48 hour time frame is necessary or how it was arrived at.  While other statutes, such as laws against driving while intoxicated, have similar provisions, in those cases the intent is to prevent someone whose driving ability is chemically compromised from returning to the road until they are sober.  To be charitable to the government, it is not clear how 48 hours in the lockup (other than its sheer punitive aspect) is likely to make a consumer of commercial sex less likely to consume same.

         Moreover, since every customer who is arrested is going to be nicked for at least $1,000 if the law is passed, one might reasonably ask where that money is going to.  According to the bill “Fifty percent of the fines collected and deposited shall be granted to public agencies and nonprofit corporations that provide exit or recovery programs for individuals exploited through commercial sex. Fifty percent of the fines collected and deposited shall be granted to law enforcement and prosecution agencies in the jurisdiction in which the charges were filed to fund programs to prevent sex purchasing.”

         In other words, the bill gives law enforcement a direct and inappropriate incentive to entrap people since they would get at least $500 a head (divided up in some fashion with the District Attorney) for every person convicted under the statute.

On top of that, the bill would permit the Court to  impose an additional fine on customers purchasing sex from a minor (to the tune of at least $1,000 and up to $10,000) the proceeds of which would be deposited in a fund to be created by the bill and administered by a state agency apparently to be named later.

Why Should You Care?

         Although the bill is supposedly intended to target those who purchase commercial sex, it is sex workers who will likely pay the higher price if it becomes law in its current form.   Under its terms, every customer of commercial sex will know they are running the risk of doing at least two days in jail and a $1,000 fine if the person they are propositioning turns out to be an undercover officer. 

         This will likely deter those customers who are otherwise law-abiding, including but not limited to those who have jobs, families and no desire to assault or murder the sex worker they are retaining.  On the other hand, if a customer is a violent felon who has multiple other criminal matters outstanding, the prospect of potentially receiving 48 hours to six months in jail and a fine is likely to be more comedic than behavior altering.

         Having more committed criminals, particularly those with a history or propensity for violence in the client pool for sex workers only makes sense if one believes that the best way to “protect” sex workers is to make their jobs as dangerous as possible in an attempt to deter them from the path they have chosen. 

         History points out the flaws in this reasoning.  For years, abortion was illegal in America and women paid a terrible price.  Those with no resources were left to back alley butchers.  Those who had resources were marginally better off, but were still subject to all of the risks involved with unregulated surgery.  In either case, forbidding access to abortion didn’t improve the lives of women or their children.

         Sex workers shouldn’t have to relieve horrors like this, especially when the likely outcome is clear

What Could Be Done

         Whether or not sex work is legal, some persons will always choose to engage in it—and for certain persons in certain populations, doing so may be the best choice for them, if only under a theory of efficient breach.  The Legislature needs to recognize this reality and focus its efforts on harm mitigation, rather than on punitive measures that will ultimately injure the sex workers it is supposedly trying to protect.  In its current form, the bill is completely unacceptable.

* Ms. DiEdoardo is a San Francisco resident and an active member of the State Bars of California and Nevada whose practice is focused on state and federal criminal defense.  For more information about Ms. DiEdoardo and her firm, visit http://www.diedoardolaw.com.  Nothing in this article should be construed as legal advice and no attorney-client relationship between the reader and Ms. DiEdoardo is created by reading it.