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NC Prostitution Changes

2013 NC legislation, S.L. 2013-368, overhauled the state’s prostitution offenses. It repealed G.S. 14‑190.18 (promoting prostitution of minor), 14‑190.19 (participating in prostitution of minor), 14‑204.1 (loitering for prostitution), 14‑205 (prosecution of offenses), 14‑207 (degrees of guilt), and 14‑208 (punishment). Additionally it rewrote every other provision in Ch. 14 Article 27 save one (only G.S. 14-206 (reputation & prior conviction admissible) was untouched). The changes are effective for offenses committed on or after October 1, 2013. Here is a summary of the new offenses.

Prostitution

Elements. A person guilty of this offense

(1)  willfully

(2)  engages in prostitution.

G.S. 14-204(a).

Punishment. Class 1 misdemeanor. G.S. 14-204(a). For conditional discharge, see G.S. 14-204(b). For special probation conditions, see G.S. 14-205.4.

Notes

Element (1). For the definition of the term “willfully” see Jessica Smith, North Carolina Crimes 6 (7th ed. 2012).

Element (2). “Prostitution” is the performance of, offer of, or agreement to perform vaginal intercourse, a sexual act, or sexual contact for the purpose of sexual arousal or gratification and for money or other consideration. G.S. 14-203(5).

“Sexual act” includes cunnilingus, fellatio, analingus, anal intercourse, and the penetration by any object into the genital or anal opening of another person’s body, except when for accepted medical purposes. G.S. 14-203(5); 14-27.1(4).

“Sexual contact” includes touching the sexual organ, anus, breast, groin, or buttocks of another; touching another with one’s own sexual organ, anus, breast, groin, or buttocks; and ejaculating, emitting, or placing semen, urine, or feces on another. G.S. 14-203(5); 14-27.1(5). “Touching” means physical contact, including through clothing. G.S. 14-27.1(6).

Immunity for minors. The law provides for immunity from prosecution for persons less than 18 years of age. G.S. 14-204(c); 14-203(2).

Solicitation of Prostitution

Elements. A person guilty of this offense

(1)  solicits another

(2)  for prostitution.

G.S. 14-205.1.

Punishment. Class 1 misdemeanor for a first offense; Class H felony for a second or subsequent offense. G.S. 14-205.1. The statute provides for two enhanced versions of this offense. First, a person 18 years or older who willfully solicits a minor under 18 years old is guilty of a Class G felony. Id; G.S. 14-203(2). Second, a person who willfully solicits a severely or profoundly mentally disabled person is guilty of a Class E felony. G.S. 14-205.1. The term “severely or profoundly mentally disabled” is not defined. The additional facts enhancing punishment must be alleged in the charging instrument and found by a jury. For all versions of the offense, punishment may include participation in a “John School”. Id. A PJC is not allowed. Id. For special probation conditions, see G.S. 14-205.4.

Notes

Element (2). “Prostitution” is defined above.

Patronizing a Prostitute

Elements. A person guilty of this offense

(1)  willfully

(2)  (a)  (i)        engages in vaginal intercourse, a sexual act, or a sexual contact

(ii)           for the purpose of sexual arousal or gratification

(iii)          with a prostitute, or

(b)  (i)         enters or remains

(ii)           in a place of prostitution

(iii)          with intent to engage in vaginal intercourse, a sexual act, or a sexual contact

(iv)         for the purpose of sexual arousal or gratification and

(3)  the acts are done with a person who is not the defendant’s spouse.

G.S. 14-205.2.

Punishment. A first offense is a Class A1 misdemeanor; a second or subsequent offense is a Class G felony. G.S. 14-205.2(b). There are two enhanced versions of this offense. First, a violation is a Class F felony if the defendant is 18 years or older and the prostitute is less than 18. G.S. 14-205.2(c); 14-203(2). Second, a violation is a Class D felony if the prostitute is severely or profoundly mentally disabled. G.S. 14-205.2(d). The additional facts enhancing punishment must be alleged in the charging instrument and found by a jury. The term “severely or profoundly mentally disabled” is not defined. Both elevated versions of this offense qualify as sexual violent offenses for the purposes of the sex offender registration statutes. G.S. 14-190.13(5). For special probation conditions, see G.S. 14-205.4.

Notes

Element (1). For the definition of the term “willfully” see Jessica Smith, North Carolina Crimes 6 (7th ed. 2012).

Element (2). The terms “sexual act” and “sexual contact” are defined above. A prostitute is “a person who engages in prostitution.” G.S. 14-203(4).

Element (3). It is not clear if this provision is an element of the offense or a defense.

Promoting Prostitution

Elements. A person guilty of this offense

(1)  willfully

(2)  (a)  advances prostitution or

(b) profits from prostitution.

G.S. 14-205.3(a).

Punishment. Class F felony. Class E felony if the defendant has a prior conviction for this offense, G.S. 14‑204 (prostitution), G.S. 14‑204.1 (solicitation of prostitution), or G.S. 14‑204.2 (patronizing a prostitute). For special probation conditions, see G.S. 14-205.4.

Notes.

Element (2)(a). A person advances prostitution when, acting as other than a prostitute or a patron of a prostitute, he or she:

  • solicits another for prostitution;
  • arranges or offers to arrange a meeting of people for prostitution,
  • directs another to a place knowing the direction is for prostitution, or
  • uses the Internet, including social media, to solicit another for prostitution.

G.S. 14-203(1)(a). A person also advances prostitution by keeping a place of prostitution. This means controlling or exercising control over the use of a place that could offer seclusion or shelter for prostitution and performing any of the following acts, when acting as other than a prostitute or a prostitute’s patron:

  • knowingly granting or permitting the use of the place for prostitution,
  • granting or permitting the use of the place under circumstances from which the person should reasonably know that the place is used or is to be used for prostitution, or
  • permitting the continued use of the place when the person should know that the place is being used for prostitution.

G.S. 14-203(1)(b).

Element (2)(b). To profit from prostitution means “[w]hen acting as other than a prostitute, to receive anything of value for personally rendered prostitution services or to receive anything of value from a prostitute, if the thing received is not for lawful consideration and the person knows it was earned in whole or in part from the practice of prostitution.” G.S. 14-203(3). The profiting may occur by compelling a person to become a prostitute; by receiving a portion of the earnings from a prostitute for arranging or offering to arrange a situation in which the person may practice prostitution or; by any other means. G.S. 14-205.3(a). However, profiting from prostitution “by any other means” does not apply to a minor engaged in prostitution or when the practice of prostitution underlying the offense consists exclusively of the defendant’s own acts of prostitution under G.S. 14‑204. G.S. 14-205.3(a)(2)c.

Promoting Prostitution of Minor or Mentally Disabled Person

Elements. A person guilty of this offense

(1)        willfully

(2)        (a)        (i)         advances prostitution and

(ii)        a minor or severely or profoundly mentally disabled person engaged in prostitution, or

(iii)       any person engaged in prostitution in the place of prostitution is a minor or severely or profoundly mentally disabled person, or

(b)        (i)         profits from prostitution and

(ii)        the prostitute is

(1)  a minor or

(2)  a severely or profoundly mentally disabled person, or

(c)        (i)         confines

(ii)        a minor or a severely or profoundly mentally disabled person

(iii)       against the person’s will

(iii)          by

(1)  the infliction or threat of imminent infliction of great bodily harm, permanent disability, or disfigurement or

(2)  administering an alcoholic intoxicant or controlled substance, without consent or by threat or deception and for non-medical purposes, and

(v)        does any of the following:

(1)  compels the minor or severely or profoundly mentally disabled person to engage in prostitution,

(2)  arranges a situation for the minor or severely or profoundly mentally disabled person to practice prostitution, or

(3)  profits from the minor or severely or profoundly mentally disabled person’s prostitution.

G.S. 14-205.3(b).

Punishment. If Elements (2)(a) or (b) are involved, Class D felony. If Element (2)(c) is involved, Class C felony. Additionally, if the person has a prior conviction for violating this statute, G.S. 14‑204 (prostitution), G.S. 14‑204.1 (solicitation of prostitution), or G.S. 14‑204.2 (patronizing a prostitute) punishment is as a Class C felony. For special probation conditions, see G.S. 14-205.4.

Notes.

Element (1). For the definition of the term “willfully” see Jessica Smith, North Carolina Crimes 6 (7th ed. 2012).

Element (2) generally. A minor is a person under 18 years old. G.S. 14-203(2). The statute does not define the term “severely or profoundly mentally disabled.”

Element (2)(a). “Advances prostitution” is defined above.

Element (2)(c)(iv). Administering drugs or alcoholic intoxicant is deemed to be without consent if it is done without the consent of the parents or legal guardian or is performed or permitted by the parents or legal guardian for non-medical purposes. G.S. 14-205.3(b).

Mistake of age. Mistake of age is not a defense. G.S. 14-205.3(b).

Sex offender registration. A conviction of this offense triggers sex offender registration requirements. G.S. 14-190.13(5).