Many legal practitioners think of prostitution-related crimes as non-serious public order offences akin to other misdemeanors. And, for many years, both the law and law enforcement treated these crimes as such. However, there has been a significant change in Illinois criminal law when it comes to prostitution. While this change has been taking place over the last decade in Illinois, many practitioners, including some who do criminal work, are unaware of these changes. Many lawyers don't realize that it is becoming less common these days for prostitution-related crimes to be treated like mere public order offences and more common for these crimes to be treated like instances of human trafficking and exploitation. This change has not only manifested itself in the attitudes and approaches of law enforcement, but it has also been enshrined in statute. From the perspective of a defense lawyer, this change has been both very good and very bad. First, it is good because it recognizes the fact that some women (and men) in prostitution are truly victims of abuse and coercion. The law has responded to this reality by eliminating some of the harsher consequences that prostitutes once faced. For instance, there is no longer a felony classification for prostitutes with multiple convictions. Additionally, victims of trafficking can very quickly have their criminal records sealed, and the law now explicitly states that coercion or trafficking are affirmative defenses to the crime of prostitution. On the other hand, the change is very bad because it seeks to elevate crimes like soliciting and patronizing a prostitute into the realm of more serious offences such as pimping and human trafficking. Along with this change in attitude, there has been a serious increase in the penalties that the law applies to those who are convicted of patronizing and/or soliciting prostitutes. And, while the statutes imposing these penalties are written in a gender-neutral way, the obvious purpose of these laws is to target men.
Much of this change has been driven by feminist-marxist ideas about prostitution and the sex trade. In the minds of many such activists, sex work is a form of patriarchal oppression and violence against women as opposed to a private matter between consenting adults. This ideology has led to major changes in prostitution laws in other countries and jurisdictions as well. The so-called “Nordic” or “Swedish” model has been adopted to some degree in the Nordic countries as well as Ireland, Canada, and France.[i] Under the “Nordic” model, it is usually legal for sex workers to sell their services, but illegal for buyers to purchase those services. The changes that have occurred in Illinois law have to some degree mirrored this approach. While Illinois doesn't quite go as far as the “Nordic” model in that sex work is not legal for sellers or buyers, it does seek to lessen the consequences faced by sellers who are more often perceived as victims while simultaneously increasing the consequences for buyers who are more often perceived as facilitators or predators. In the words of CAASE (Chicago Alliance Against Sexual Exploitation), one of the big activist organizations behind these changes, “Prostitution could not exist without the purchasers who create the demand for paid sex. Violence against women in the sex trade is pervasive, and yet our society has yet to stand up against the people who fuel the sex trade. The End Demand Illinois campaign raises awareness about the role that purchasers (often referred to as “johns”), pimps, and traffickers play in perpetuating violence against women in the sex trade.” [ii]This quote is prominently displayed on the home page of the CAASE Illinois website. The website goes on to say that “Our End Demand Illinois campaign has sharply reduced the criminal system impact on prostituted people while successfully increasing accountability for exploiters.” [iii]
So, the agenda is very clear. The buyers, who are mostly men, are now regarded almost automatically as exploiters. And, those who are selling sex, mostly women, are almost always viewed as suffering under some form of victimization. As stated above, this mindset is both helpful and harmful. It prevents many women from being treated with unnecessary harshness in the criminal justice system. Unfortunately, this philosophy has also moved the law in a direction that specifically seeks to shame and severely punish the men who purchase these services. And yes, technically, both men and women face the same statutory penalties for these crimes. However, realistically, men are the target of these laws.[iv] Thus, the philosophy underlying these changes is both sexist and unnecessarily punitive towards men. So, it is important for criminal lawyers to understand the serious consequences faced by their male clients who are charged with these crimes and to act accordingly. Likewise, it is important for lawyers who represent the women in this trade to understand how they can take advantage of the increasingly more sympathetic attitude the law applies to them. The following article is a breakdown of how this philosophy has already played out in Illinois criminal law and what further developments could result from this new approach to prostitution.
WHAT IS PROSTITUTION UNDER ILLINOIS LAW
What is prostitution under Illinois law? The crime of prostitution is defined under 720 ILCS 5/11-14 as follows:
(720 ILCS 5/11-14) (from Ch. 38, par. 11-14)
Sec. 11-14. Prostitution.
(a) Any person who knowingly performs, offers or agrees to perform any act of sexual penetration as defined in Section 11-0.1 of this Code for anything of value, or any touching or fondling of the sex organs of one person by another person, for anything of value, for the purpose of sexual arousal or gratification commits an act of prostitution. [v]
So, this section defines prostitution broadly as performing various acts of sexual gratification (which are further defined in rather graphic and exhaustive detail under Section 11-.01 of the Code)[vi] in exchange for “anything of value.” This “anything of value” is further defined as “any money, property, token, object, or article or anything of value” by the language in the following section dealing with the crime of solicitation. Thus, this section is clearly designed to encompass a wide range of activities which are exchanged for a wide range of goods. The only limitation on this broad definition is offered under the solicitation section that narrows the criminality of these exchanges to a “person not his or her spouse.”
Sec. 11-14.1. Solicitation of a sexual act.
(a) Any person who offers a person not his or her spouse any money, property, token, object, or article or anything of value for that person or any other person not his or her spouse to perform any act of sexual penetration as defined in Section 11-0.1 of this Code, or any touching or fondling of the sex organs of one person by another person for the purpose of sexual arousal or gratification, commits solicitation of a sexual act.[vii]
So, based on these two sections, any offer or any exchange of “anything of value” for almost any form of sexual gratification with someone who is not a “spouse”, can arguably run afoul of this statute. One of the biggest problems with this statute is how broadly it can be interpreted. The definition of prostitution encompasses a whole range of potential activities that most people would not think of as prostitution. Exchanging “anything of value” for sex could include all kinds of situations that have absolutely no connection to the sex trade. Thus, a boyfriend or girlfriend who sponsors a fancy dinner, clothing purchase, or pays for an expensive vacation in exchange for some form of sexual gratification from their partner could arguably be in violation of this statute. Now, realistically, this is not how the law is normally applied in Illinois. It is doubtful anyone has ever been prosecuted under such a hypothetical. But the concern here is the potential for mischief that could occur as the law continues to evolve. And, given the way the law has already evolved in this area, and given the excesses of the #me too movement, one doesn't have to be paranoid or have a wild imagination to see how this law could be used for nefarious purposes.
PATRONIZING IS A FELONY
In keeping with the goal of creating a more punitive regime for men who pay for sex, the law of Illinois has changed such that, if you pay for and have sex with a prostitute, you are guilty of committing a felony. This has been the case since 2010, and this change was brought about as part of amendments to the criminal code dealing with the trafficking of minors.[viii] This is a big change and has very serious implications for those who are convicted of this crime. A felony conviction, in addition to longer potential prison sentences, comes with serious implications for professional licenses, gun ownership, etc. So, this is certainly not something to treat lightly when representing a client facing such a charge. The statute reads as follows:
(720 ILCS 5/11-18) (from Ch. 38, par. 11-18)
Sec. 11-18. Patronizing a prostitute.
(a) Any person who knowingly performs any of the following acts with a person not his or her spouse commits patronizing a prostitute:
(1) Engages in an act of sexual penetration as
defined in Section 11-0.1 of this Code with a prostitute; or
(2) Enters or remains in a place of prostitution with
intent to engage in an act of sexual penetration as defined in Section 11-0.1 of this Code; or
(3) Engages in any touching or fondling with a
prostitute of the sex organs of one person by the other person, with the intent to achieve sexual arousal or gratification.
Patronizing a prostitute is a Class 4 felony, unless committed within 1,000 feet of real property comprising a school, in which case it is a Class 3 felony. A person convicted of a second or subsequent violation of this Section, or of any combination of such number of convictions under this Section and Sections 11-14 (prostitution), 11-14.1 (solicitation of a sexual act), 11-14.3 (promoting prostitution), 11-14.4 (promoting juvenile prostitution), 11-15 (soliciting for a prostitute), 11-15.1 (soliciting for a juvenile prostitute), 11-16 (pandering), 11-17 (keeping a place of prostitution), 11-17.1 (keeping a place of juvenile prostitution), 11-18.1 (patronizing a juvenile prostitute), 11-19 (pimping), 11-19.1 (juvenile pimping or aggravated juvenile pimping), or 11-19.2 (exploitation of a child) of this Code, is guilty of a Class 3 felony. If the court imposes a fine under this subsection (b), it shall be collected and distributed to the Specialized Services for Survivors of Human Trafficking Fund in accordance with Section 5-9-1.21 of the Unified Code of Corrections.[ix]
Take note that this section applies to anyone who engages in any of the described sexual activities “with a prostitute.” But, who is a “prostitute” under the statute? Presumably, a “prostitute” is potentially anyone who is not your spouse. This is the only possible interpretation allowed by the statute. As stated above, these activities, as applied to “a person not his or her spouse,” are within the statute's definition. So, hypothetically, a boyfriend who buys something nice for his girlfriend or partner in exchange for sex, has technically had sex with a “prostitute.” And thus, by definition, he has committed the felony of patronizing. Granted, the girlfriend may not think of herself as a “prostitute,” but under the statute, she technically meets that definition. Now, again, this is not how the law is currently practiced or applied in Illinois. But, who knows where this could go in the future? Regardless, the law is not well written and could use some updates. Likewise, a felony designation is a very harsh outcome for patronizing a prostitute. A class 4 felony is the same designation that is applied to the crime of promoting prostitution (essentially pimping). 720 ILCS 5/11-14.3.[x] But unfortunately, this is all in keeping with the goal of specifically targeting, shaming and punishing men who pay for sex.
RECORDS OF OFFENSES CANNOT BE SEALED FOR PATRONIZING OR SOLICITING
Currently, in the United States, there is an effort underway to lessen the stigma for non-violent ex-convicts who serve their time and want to reintegrate into society. One of the ways this is accomplished is by expanding the ability of ex-cons or ex-arrestees to either expunge or seal their arrest or conviction records. For the most part, those who receive a criminal conviction other than court supervision aren't eligible for expungements in Illinois. But, for many crimes in Illinois, those who receive convictions can still have their records sealed. This is very important because sealing a record is usually an effective means of keeping such a record out of the view of potential employers. Yet, for the crime of soliciting and/or patronizing a prostitute, sealing a record is deliberately not an available option. Under the Criminal Identification Act, convictions for these crimes are deliberately excluded from those crimes that are eligible for sealing. This, again, is in keeping with the goals of those who want to shame the men convicted under these statutes. And in this case, the shame is meant to be permanent and to follow these convicts for the duration of their lives. Remarkably, in this environment, those who are convicted of soliciting or patronizing are not yet required to register as sex offenders unless the solicitation or patronizing involves a minor. (730 ILCS 150/2)[xi]. However, if the law continues to develop on its current course, registering may be a requirement in the future. The section excluding these crimes from the option to seal is below:
(20 ILCS 2630/) Criminal Identification Act.
Section 5.2 (a)(3)(C)
3) Exclusions. Except as otherwise provided in
subsections (b)(5), (b)(6), (b)(8), (e), (e-5), and (e-6) of this Section, the court shall not order:
(C) the sealing of the records of arrests or
charges not initiated by arrest which result in an order of supervision or a conviction for the following offenses:
(i) offenses included in Article 11 of the
Criminal Code of 1961 or the Criminal Code of 2012 or a similar provision of a local ordinance, except Section 11-14 and a misdemeanor violation of Section 11-30 of the Criminal Code of 1961 or the Criminal Code of 2012, or a similar provision of a local ordinance;[xii]
Take note that the exclusions apply to 720 ILCS 5/11 which covers solicitation and patronizing. However, Section 11-14, which covers just the crime of prostitution is deliberately excluded from the exclusions. So, once again, the law follows a pattern of punishing and shaming the men who buy sex while limiting the consequences for those who sell sex. Soliciting and patronizing are not eligible for sealing. But, the crime of prostitution is eligible for sealing.
AFFIRMATIVE DEFENSES FOR PROSTITUTION AND THE END OF THE FELONY CLASSIFICATION
One of the better results of these changes to the law has been the elimination of the felony classification for prostitution. Prior to 2013, Prostitutes with multiple convictions could be charged with and convicted of a felony. This was ended with the amendments brought out by SB 1782, a bill which was signed into law in 2013.[xiii] Additionally, the law has gone even further in protecting prostitutes who are victims of trafficking by allowing them affirmative defenses. The relevant section of 720 ILCS 5/11-14 states as follows:
(c-5) It is an affirmative defense to a charge under this Section that the accused engaged in or performed prostitution as a result of being a victim of involuntary servitude or trafficking in persons as defined in Section 10-9 of this Code.[xiv]
720 ILCS 5/10-9 describes Involuntary servitude and trafficking as follows:
(b) Involuntary servitude. A person commits involuntary servitude when he or she knowingly subjects, attempts to subject, or engages in a conspiracy to subject another person to labor or services obtained or maintained through any of the following means, or any combination of these means:
(1) causes or threatens to cause physical harm to any
(2) physically restrains or threatens to physically
restrain another person;
(3) abuses or threatens to abuse the law or legal
(4) knowingly destroys, conceals, removes,
confiscates, or possesses any actual or purported passport or other immigration document, or any other actual or purported government identification document, of another person;
(5) uses intimidation, or exerts financial control
over any person; or
(6) uses any scheme, plan, or pattern intended to
cause the person to believe that, if the person did not perform the labor or services, that person or another person would suffer serious harm or physical restraint.[xv]
And, Trafficking is defined as follows:
(d) Trafficking in persons. A person commits trafficking in persons when he or she knowingly: (1) recruits, entices, harbors, transports, provides, or obtains by any means, or attempts to recruit, entice, harbor, transport, provide, or obtain by any means, another person, intending or knowing that the person will be subjected to involuntary servitude; or (2) benefits, financially or by receiving anything of value, from participation in a venture that has engaged in an act of involuntary servitude or involuntary sexual servitude of a minor.[xvi]
A criminal defense lawyer who can offer evidence that an act of prostitution was committed under the circumstances described above, has a good chance of succeeding on an affirmative defense.
TRAFFICKING VICTIMS ARE ELIGIBLE FOR EXPEDITED SEALING OF RECORDS
A victim of trafficking may petition the court for immediate sealing of his or her criminal record if the victim's participation in the underlying offense was a direct result of trafficking as defined by the statutes provided above. This is different than the normal record sealing procedure in that there is no waiting period before a trafficking victim can have his or her record sealed. A victim petitioning the court under this section must provide a statement clearly stating how the conduct that gave rise to a conviction was the result of trafficking or coercion. If an objection is filed to the petition, a hearing will be held, and the victim must show by a preponderance of the evidence that he or she was indeed a victim of trafficking. This “preponderance of the evidence” standard gives the victim a good chance of prevailing on his or her petition. The relevant section reads as follows:
20 ILCS 2630/
(h) Sealing; trafficking victims.
(1) A trafficking victim as defined by paragraph (10)
of subsection (a) of Section 10-9 of the Criminal Code of 2012 shall be eligible to petition for immediate sealing of his or her criminal record upon the completion of his or her last sentence if his or her participation in the underlying offense was a direct result of human trafficking under Section 10-9 of the Criminal Code of 2012 or a severe form of trafficking under the federal Trafficking Victims Protection Act.
(2) A petitioner under this subsection (h), in
addition to the requirements provided under paragraph (4) of subsection (d) of this Section, shall include in his or her petition a clear and concise statement that: (A) he or she was a victim of human trafficking at the time of the offense; and (B) that his or her participation in the offense was a direct result of human trafficking under Section 10-9 of the Criminal Code of 2012 or a severe form of trafficking under the federal Trafficking Victims Protection Act.
(3) If an objection is filed alleging that the
petitioner is not entitled to immediate sealing under this subsection (h), the court shall conduct a hearing under paragraph (7) of subsection (d) of this Section and the court shall determine whether the petitioner is entitled to immediate sealing under this subsection (h). A petitioner is eligible for immediate relief under this subsection (h) if he or she shows, by a preponderance of the evidence, that: (A) he or she was a victim of human trafficking at the time of the offense; and (B) that his or her participation in the offense was a direct result of human trafficking under Section 10-9 of the Criminal Code of 2012 or a severe form of trafficking under the federal Trafficking Victims Protection Act. [xvii]
Take note that those who are convicted of the crime of prostitution and unable to prove they were a victim of trafficking, are still eligible for the longer sealing procedure under 20 ILCS 2630/5.2 (a)(3)(C) of the Criminal Identification Act as stated and discussed above.
“GRAY AREAS” OF THE LAW
As broad as the definition of prostitution is in Illinois, there are some “gray areas” for which the case law, commentaries, and treatises offer little analysis. For instance, there is the issue of situations involving high end escorts or courtesans who only offer “time and companionship” in exchange for money. Additionally, there are so-called “sugar daddy” websites whereby wealthy older men pay large sums of money for dating relationships with younger women. The logic offered by these services is that they are not exchanging sex for money, but rather, time or dating arrangements for money. And, any sexual activity that occurs in the course of these arrangement is merely a matter between consenting adults who participate in this activity gratuitously.
There is indeed very little case law dealing with this topic. However, given the increasingly hostile environment for men who pay for sex, this a gray area that comes with some real risk of being in violation of the law. There is one Illinois case from the 90's that offers some insight on this topic. People v. Debartolo, interestingly, involves the case of a male masseur who was charged under the statute after he agreed to perform a sexual act on an undercover female officer.[xviii] The facts of the case were such that the undercover officer posed as a customer and asked how much a massage would cost. The masseur advised that the massage would cost $50. The officer proceeded to ask if the masseur would include a sex act, and the masseur agreed. After conviction, the masseur appealed by arguing that he was not violating the prostitution statute because he did not offer the sex act for money. Rather, the price of the massage was $50 either way. In other words, since the sex act was offered gratuitously, there was no violation of the statute. The court acknowledged that there was little case law that was on point for the matter, and thus, cases from other states were considered in the decision. Ultimately, the court decided to uphold the conviction because it did not believe that the sexual services were offered gratuitously. According to the court, “to prevent circumvention of the statute, the offer or agreement need not be express or in the language of the statute, but may be implied from the words and actions of the defendant taken in context.”[xix] So, applying the reasoning of this case, the issue is not so much if gratuitous exchanges of sexual favors are allowed, the question is whether a court will believe the exchange was truly gratuitous in context. Based on this, it is not inconceivable for courts to interpret an exchange of money for “time and companionship only” as realistically being more of an exchange of sex for money. In light of that reasoning, these “gray area” arrangements could possibly result in a conviction under this statute.
WHAT TO DO
Given the law as it is, what can practitioners do? Some of the strategy here is rather obvious. First, when dealing with clients who are facing charges for prostitution or solicitation, a good lawyer should seek out various programs that involve deferred prosecution or supervision. While the law is treating defendants who pay for sexual services more harshly than defendants who sell such services, the law does afford both categories of offenders various programs that allow them to avoid prosecution in exchange for completing various conditions. Deferred prosecution is a scenario whereby a prosecutor will allow a defendant to complete various conditions (education, community service, etc.) in exchange for dropping the case upon successful completion. This is usually available for first time offenders in some Illinois counties. Supervision, on the other hand, is a scenario where a defendant pleads guilty but then must meet a series of conditions so that the court record will ultimately exclude an actual conviction. If a defendant successfully completes the conditions, the final disposition of the case is recorded as a non-conviction supervision, and the defendant can apply for expungement of the records within a few years. Even with the greater stigma now faced by those who are caught trying to pay for sex, many courts still prefer that these defendants receive education rather than other punishments. A good example of such a program is the Kane County Deferred Prosecution Program. This program places a heavy emphasis on educating defendants about the risks and consequences of prostitution/solicitation.[xx] Second, when dealing with clients in prostitution, a practitioner should investigate whether there has been any kind of trafficking or coercion. If so, the affirmative defenses discussed above should be applied. Practitioners should make sure that clients who are truly victims are treated as such and afforded all the protections offered by the law. Third, for clients facing patronizing charges, a lawyer should try to negotiate a plea for a lesser charge. In many cases, bringing a case for patronizing is difficult because the prosecutor needs proof that the defendant had sexual relations with a prostitute. And, it is not always easy to get the prostitute to testify to this for obvious reasons. Thus, a plea deal for a lesser, non-felony conviction is often a good strategy in these cases. Even though the felony patronizing law is harsh, very few defendants have been convicted of felony patronizing in Illinois.[xxi] So, there are options available to defense practitioners. Finally, right or wrong, the law “is what is,” and the safest way to avoid legal problems is to avoid committing these crimes and to be extremely cautious about the “gray areas” discussed above.
[i] Haask, Debra M., “Who are we talking about when we talk about prostitution and sex work”, The Conversation, The Conversation USA, Inc., 2010-2018, https://theconversation.com/who-are-we-talking-about-when-we-talk-about-prostitution-and-sex-work-88123
[ii] End Demand Illinois, Chicago Alliance Against Sexual Exploitation, http://caase.org/end-demand-illinois
[iii] End Demand Illinois, Chicago Alliance Against Sexual Exploitation, http://caase.org/end-demand-illinois
[iv] Charlotte Alter and Diane Tsai, “Catching Johns, Inside the National Push to Arrest Men Who Buy Sex”, TIME, You.com USA, LLC d/b/a TIME, http://time.com/sex-buyers-why-cops-across-the-u-s-target-men-who-buy-prostitutes/
[v] 720 ILCS 5/11-14, Illinois General Assembly, Legislative Information System, www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=072000050HArt%2E+11+Subdiv%2E+15&ActID=1876&ChapterID=53&SeqStart=17400000&SeqEnd=19100000
[vi] 720 ILCS 5/11-0.1, Illinois General Assembly, Legislative Information System, http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=072000050K11-0.1
[vii] 720 ILCS 5/11-14.1, Illinois General Assembly, Legislative Information System,
[ix] 720 ILCS 5/11-18, Illinois General Assembly, Legislative Information System, www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=072000050HArt%2E+11+Subdiv%2E+15&ActID=1876&ChapterID=53&SeqStart=17400000&SeqEnd=19100000
[x] 720 ILCS 5/11-14.3, Illinois General Assembly, Legislative Information System, http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=072000050K11-14.3
[xi] 730 ILCS 150/2, Illinois General Assembly, Legislative Information System, http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2009&ChapterID=55
[xii] 20 ILCS 2630, Illinois General Assembly, Legislative Information System, http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=350&ChapterID=5
[xiii] Illinois General Assembly, SB 1872, Legislative Information System http://www.ilga.gov/legislation/BillStatus.asp?DocNum=1872&GAID=12&DocTypeID=SB&SessionID=85&GA=98
[xiv] 720 ILCS 5/11-14, Illinois General Assembly, Legislative Information System, www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=072000050HArt%2E+11+Subdiv%2E+15&ActID=1876&ChapterID=53&SeqStart=17400000&SeqEnd=19100000
[xv] 720 ILCS 5/10-9, Illinois General Assembly, Legislative Information System, http://www.ilga.gov/legislation/ilcs/documents/072000050K10-9.htm
[xvi] 720 ILCS 5/10-9, Illinois General Assembly, Legislative Information System, http://www.ilga.gov/legislation/ilcs/documents/072000050K10-9.htm
[xvii] 20 ILCS 2630, Illinois General Assembly, Legislative Information System, http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=350&ChapterID=5
[xviii] People v. DeBartolo, 610 N.E.2d 131 (Ill. App. Ct. 1993)
[xix] People v. DeBartolo, 610 N.E.2d 131 (Ill. App. Ct. 1993)
[xx] Deferred Prosecution, Kane County State's Attorney Office, Kane County Illinois, Government Website, http://saopublic.co.kane.il.us/Pages/SecondChance.aspx
[xxi] Carmon, Irin, Why are We Imprisoning Prostitutes, Salon, Salon Media Group, Inc., 2018, https://www.salon.com/2013/06/04/why_are_we_imprisoning_prostitutes/