PROSTITUTION OR SOLICITATION

As most people know, prostitution is legal throughout in Nevada. What is not commonly known is that prostitution is not legal in Nevada’s two largest counties, Clark (Las Vegas) and Washoe (Reno). Moreover, throughout the rest of Nevada, prostitution is heavily regulated. Convictions for violations of the prostitution laws are severe and include jail time and harsh fines.

What is the legal definition of Prostitution or solicitation?

Prostitution and Solicitation are governed by NRS 201.295, 201.354, 201.356, and 201.358.

NRS 201.295 – Definitions.

As used in NRS 201.295 to 201.440, inclusive, unless the context otherwise requires:

“Adult” means a person 18 years of age or older.
“Child” means a person less than 18 years of age.
“Induce” means to persuade, encourage, inveigle or entice.
“Prostitute” means a male or female person who for a fee, monetary consideration or other thing of value engages in sexual intercourse, oral-genital contact or any touching of the sexual organs or other intimate parts of a person for the purpose of arousing or gratifying the sexual desire of either person.
“Prostitution” means engaging in sexual conduct with another person in return for a fee, monetary consideration or other thing of value.
“Sexual conduct” means any of the acts enumerated in subsection 4.
“Transports” means to transport or cause to be transported, by any means of conveyance, into, through or across this State, or to aid or assist in obtaining such transportation.

NRS 201.354 – Engaging in prostitution or solicitation for prostitution: Penalty; exception.

It is unlawful for any person to engage in prostitution or solicitation therefor, except in a licensed house of prostitution.
Except as otherwise provided in subsection 3, a person who violates subsection 1 is guilty of a misdemeanor.
A person who violates subsection 1 by soliciting a child for prostitution:
1. For a first offense, is guilty of a category E felony and shall be punished as provided in NRS 193.130, and by a fine of not more than $5,000.
2. For a second offense, is guilty of a category D felony and shall be punished as provided in NRS 193.130.
3. For a third or subsequent offense, is guilty of a category C felony and shall be punished as provided in NRS 193.130. The court shall not grant probation to or suspend the sentence of a person punished pursuant to this paragraph.

NRS 201.356 – Test for exposure to human immunodeficiency virus required; payment of costs; notification of results of test.

Any person who is arrested for a violation of NRS 201.354 must submit to a test, approved by regulation of the State Board of Health, to detect exposure to the human immunodeficiency virus. The State Board of Health shall not approve a test for use that does not provide the arresting law enforcement agency with the results of the test within 30 days after a person submits to the test. If the person is convicted of a violation of NRS 201.354, the person shall pay the sum of $100 for the cost of the test.
The person performing the test shall immediately transmit the results of the test to the arresting law enforcement agency. If the results are negative, the agency shall inform the court of that fact. If the results of the test are positive, the agency shall upon receipt:
1. Mail the results by certified mail, return receipt requested, to the person arrested at his or her last known address and place the returned receipt in the agency’s file; or
2. If the person arrested is in the custody of the agency, personally deliver the results to him or her and place an affidavit of service in the agency’s file.

If before receiving the results pursuant to this subsection, the person arrested requests the agency to inform him or her of the results and the agency has received those results, the agency shall deliver the results to the person arrested, whether positive or negative, and place an affidavit of service in the agency’s file.

The court shall, when the person arrested is arraigned, order the person to reappear before the court 45 days after the arraignment to determine whether the person has received the results of the test. The court shall inform the person that the failure to appear at the appointed time will result in the issuance of a bench warrant, unless the order is rescinded pursuant to this subsection. If the court .
As used in this section, “victim” means any person:
1. Against whom a violation of any provision of NRS 201.300 or 201. 320 has been committed; or
2. Who is the surviving child or such a person.

NRS 201.345 – Attorney General has concurrent jurisdiction with district attorneys.

The attorney General has concurrent jurisdiction with the district attorneys of the counties in this State to prosecute any violation of NRS 201.300 or 201.320..
When acting pursuant to this section, the Attorney General may commence an investigation and file a criminal action without leave of court and the Attorney General has exclusive charge of the conduct of the prosecution.

NRS 201.350 – Venue.

It shall not be a defense to a prosecution for any of the acts prohibited in NRS 201.300 or 201. 320 that any part of such act or acts shall have been committed outside this state, and the offense shall in such case be deemed and alleged to have been committed, and the offender tried and punished, in any county in which the prostitution was consummated, or any overt act in furtherance of the offense shall have been committed.

NRS 201.351 – Forfeiture of assets; temporary restraining order to preserve property subject to forfeiture; use of proceeds derived from forfeiture.

All assets derived from or relating to any violation of NRS 201.300 or 201.320 are subject to forfeiture pursuant to NRS 179.121 and a proceeding for their forfeiture may be brought pursuant to NRS 179.1156 to 179.121, inclusive.
In any proceeding for forfeiture brought pursuant to NRS 179.1156 to 179.121, inclusive, the plaintiff may apply for, and a court may issue without notice or hearing, a temporary restraining order to preserve property which would be subject to forfeiture pursuant to this section if:
1. The forfeitable property is in the possession or control of the party against who the order will be entered; and
2. The court determines that the nature of the property is such that it can be concealed, disposed of or placed beyond the jurisdiction of the court before a hearing on the matter.
A temporary restraining order which is issued without notice may be issued for not more than 30 days and may be extended only for good cause or by consent. The court shall provide notice and hold a hearing on the matter before the order expires.
Any proceeds derived from a forfeiture or property pursuant to this section and remaining after the distribution required by subsection 1 of NRS 179.1118 must be deposited with the county treasurer and distributed to programs for the prevention of child prostitution or for services to victims which are designated to receive such distributions by the district attorney of the county.

NRS 201.352 –Additional fine for certain violations.

If a person is convicted of a violation of subsection 2 of NRS 201.300 or NRS 201.320, the victim of the violation is a child when the offense is committed and physical force or violence or the immediate threat of physical force or violence is used upon the child, the court may, in addition to the term of imprisonment prescribed by statute for the offense and any fine imposed pursuant to subsection 2, impose a fine of not more than $500,000.
If a person is convicted of a violation of subsection 2 of NRS 201.300 or NRS 201.320, the victim of the offense is a child when the offense is committed and the offense also involves a conspiracy to commit a violation of subsection 2 of NRS 201.300 or NRS.320, the court may, in addition to the punishment prescribed by statute for the offense of a provision of subsection 2 of NRS 201.300 or NRS 201.320 and any fine imposed pursuant to subsection 1, impose a fine of not more than $500,000.
The provisions of subsections 1 and 2 do not create a separate offense but provide an additional penalty for the primary offense, the imposition of which is contingent upon the finding of the prescribed fact.

NRS 201.354 –Engaging in prostitution or solicitation for prostitution: Penalty; exception.

It is unlawful for any person to engage in prostitution or solicitation therefor, except in a licensed house of prostitution.
Except as otherwise provided in subsection 3, a person who violates subsection1 is guilty of a misdemeanor.
A person who violates subsection 1 by soliciting a child for prostitution.
1. For a first offense, is guilty of a category E felony and shall be punished as provided in NRS 193.130, and by a fine of not more than $5,000.
2. For a second offense, is guilty of a category D felony and shall be punished as provided in NRS 193.190.
3. For a third or subsequent offense, is guilty of a category C felony and shall be punished as provided in NRS 193.190. The court shall not grant probation to or suspend the sentence of a person punished to pursuant to this paragraph.

NRS 201.356 –Test for exposure to human immunodeficiency virus required; payment of costs notification of results of test.

Any person who is arrested for a violation of NRS 201.354 must submit to a test, approved by regulation of the State Board of Health, to detect exposure to the human immunodeficiency virus. The state Board of Health shall not approve a test for use that does not provide the arresting law enforcement agency with the results of the test within 30 days after a person submits to the test. If the person is convicted of a violation of NRS 201.354, the person shall pay the sum of $100 for the cost of the test.
The person performing the test shall immediately transmit the results of the test to the arresting law enforcement agency. If the results of the test are negative, the agency shall inform the court of that fact. If the results of the test are positive, the agency shall upon receipt:
1. Mail the results by certified mail, return receipt requested, to the person arrested at his or her last known address and place the returned receipt in the agency’s file; or
2. If the person arrested is in the custody of the agency, personally deliver the results to him or her and place an affidavit of service in the agency’s file.

If before receiving the results pursuant to this subsection, the person arrested requests the agency to inform him or her of the results and the agency has received those results, the agency shall deliver the results to the person arrested, whether positive or negative, and place an affidavit of service in the agency’s file.

The court shall, when the person arrested is arraigned, order the person to reappear before the court 45 days after the arraignment to determine whether the person has received the results of the test. The court shall inform the person that the failure to appear at the appointed time will result in the issuance of a bench warrant, unless the order is rescinded pursuant to this subsection. If the court is informed by the agency that the results of the person’s test were negative, the court clerk shall rescind the order for reappearance and so notify the person. If, upon receiving notice from the agency that the results of the test were positive, the person notifies the court clerk in writing that he or she has received the results, the clerk shall inform the court and rescind the order for reappearance for that determination.
The court shall, upon the person’s reappearance ordered pursuant to subsection 3, ask the person whether he or she has received the results of the test. If the person answers that he or she has received them, the court shall note the person’s answer in the court records. If the person answers that he or she has not received them, the court shall have the results delivered to the person and direct that an affidavit of service be placed in the agency’s file.
If the person does not reappear as ordered and has not notified the court clerk of his or her receipt of the results of the test in the manner set forth in subsection 3, the court shall cause a bench warrant to be issued and that person arrested and brought before the court as upon contempt. The court shall also proceed in the manner set forth in subsection 4 to ensure that the person receives the results of the test.

NRS 201.358 – Engaging in prostitution or solicitation for prostitution after testing positive for exposure to human immunodeficiency virus: Penalty; definition.

A person who:
1. Violates NRS 201.354; or
2. Works as a prostitute in a licensed house of prostitution,

After testing positive in a test approved by the State Board of Health for exposure to the human immunodeficiency virus and receiving notice of that fact is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 10 years, or by a fine of not more than $10,000, or by both fine and imprisonment.

As used in this section, “notice: means:
1. Actual notice; or
2. Notice received pursuant to NRS 201.356.

But I thought that prostitution was legal in Nevada?

It is, sort of. However, it is only legal in licensed brothels in the less populated counties in the state (in other words, every county except Clark County – which is where Las Vegas is located – and Washoe County – which is where Reno is located).

Okay, but why does it take so much to define prostitution?

Because the legal definition of prostitution is far broader than just the exchange of money for sexual intercourse. Moreover, the solicitation, both of and by a prostitute, as well as living off the earnings of a prostitute, are all crimes associated with prostitution.

How can the definition of prostitution be more broad than sex for money?

Prostitution means far more than just sexual intercourse. It also means more than anal or oral sex for money.

Prostitution is the exchange of something of value for a sexual touching of any kind.

This means that cash does not have to be involved in order to be convicted of prostitution. The exchange of anything that holds some sort of value can constitute “payment” in the context of prostitution. The definition is left broad, as are most criminal statutes, so that prosecutors have the discretion to charge someone in a wide variety of situations based on the specific situations.

Similarly, the definition of “sexual conduct” is extremely broad, allowing prosecutors to charge someone whenever there is conduct that is sexually gratifying to at least one of the people involved. That means that groping, fondling, and even light touching can be construed as “sexual conduct” with regard to prostitution. Again, the definition is intentionally broad so that prosecutors have the ability to choose whether to charge someone based on the entirety of the circumstances.

What do you mean by “solicitation.”

Solicitation is a much easier term to define and understand. Essentially, it is the offering or agreeing to engage in prostitution. For lack of a better term, it is the attempt to engage in prostitution.

Please Note: Even though solicitation is an attempted crime, intent to commit the underlying crime is not an element. In other words, it does not matter if you intended to engage in prostitution, the crime of solicitation is complete as soon as the act of offering or agreeing to engage in prostitution is completed.

Because the crime of solicitation is committed upon completion of the offer or acceptance, the manner of communication is important. The statute is intentionally vague about what constitutes an “offer” or an “acceptance” to trade sexual favors for payment. Consequently, any euphemism or alternate way of wording the actions can still be charged as solicitation. For example, referring to someone as an “escort” does not make them any less liable to solicitation charges. Nor does referring to the possibility of prostitution as “partying.” In other words, the specific language does not matter, so long as it is clear that there is an offer and/or acceptance of trading payment for sexual favors of some kind.

How does someone get charged with solicitation?

There are essentially three ways that prostitution and solicitation can be caught by law enforcement and charged:

Personal Observation – Law enforcement authorities are well aware of the places where prostitution and solicitation are most likely to occur. Consequently, they often patrol those areas and can arrest the person offering sex for pay, or the person attempting to obtain sex for pay, or both.
Police Informant – Law enforcement agencies will occasionally get information that someone is working as an illegal prostitute, or that someone is attempting to solicit others for sexual favors. Generally, even with such tips, the police will not arrest someone unless they see the solicitation or prostitution occurring.
Undercover Operations – Undercover sting operations are a popular part of television and the movies. In reality, officers will set up such operations when they suspect solicitation or prostitution taking place, but do not have enough evidence to charge someone. In these undercover operations, the officers may be setting up to catch either the alleged prostitutes or the alleged customers, depending on the information available and the particular situation.

Isn’t that entrapment?

It can be. Undercover operations, particularly those dealing with prostitution, must be very careful not to cross the line into entrapment. However, as long as the officer can show that the arrested party would have attempted to solicit prostitution even if the officer were not present, then there was no entrapment. Put another way, entrapment occurs when the accused person would not have attempted to solicit someone without the actions of the officer.

What are the possible penalties?

Convictions for prostitution and solicitation carry identical possible sentences. Both are misdemeanors in Nevada, which carry possible penalties of:

Up to 6 months in jail; and/or
Possible fines up to $1,000.

If the person being solicited is under 18, then a first conviction can be charged as a category E felony and carry a possible penalty of:

Up to 4 years in a Nevada State Prison; and
Possible fines up to $5,000.

If the solicitation is of a minor, and the conviction is a second offense, then the charge will be a category D felony, carrying with it:

Between 1 and 4 years in a Nevada State Prison; and
Possible fines up to $5,000.

For any subsequent conviction for solicitation of a minor, the charge will be a category C felony, will be unavailable for probation or suspended sentence, and will carry:

Between 1 and 5 years in a Nevada State Prison; and
Possible fines up to $10,000.

Please Note: If you are convicted of prostitution, then the state will also require that you submit to an HIV test.

Please Also Note: If a minor is involved in the solicitation, the prosecutor may also charge more serious crimes such as “statutory sexual seduction,” “lewdness with a minor,” or “sex trafficking” and may require registration on the sex offender registry.

What happens after I submit to the HIV test?

You will be required to appear in court within 45 days of taking the test. If you have not received the results, then the court will notify you of the results at that time. If the results are negative, then you will serve whatever sentence has been imposed and that will be the end of it. However, if the results are positive, then you will be required to acknowledge those results on the record.

On the other hand, if you have received the results prior to the set court date, then you will only be required to attend the court date if your results were positive. If the results are positive, you will be required to either show up to court and acknowledge the results on the record, or send written confirmation of the results to the court clerk who can then cancel the court date. If you receive the results prior to the court date and they are negative, then the court will cancel the court date and notify you.

What happens if the results are positive?

Legally speaking, once you have acknowledged receipt of the results to the court (either in writing or in person), nothing happens unless you are caught engaging in prostitution or solicitation.

A conviction for prostitution or solicitation after testing positive for HIV is a category B felony which carries:

Between 2 and 10 years in a Nevada State Prison; and/or
Possible fines up to $10,000.

Please Note: If you have not been notified that your HIV test results were positive, then you cannot be charged with the above-mentioned category B felony.

Are there any Defenses?

Yes, of course there are. The most common defenses include:

Entrapment – As noted above, many undercover sting operations cross the line and “entrap” the accused. Entrapment occurs when the illegal activity can be directly attributed to the conduct of the arresting officer. In other words, the accused criminal would not have engaged in the criminal conduct without the actions of the officer. Some common forms of entrapment in regards to prostitution and solicitation include:
- Duress – If the officers force the accused into engaging in the illegal conduct, whether through force or threat of force, then they have crossed the line into entrapment. Clearly, the accused would not have engaged in the illegal conduct without the duress created by the officer.
- Forced Intoxication – Prostitution and solicitation often occur at bars. In situations where the officer buys someone a few drinks in order to lower their inhibitions and get them to engage in solicitation, the officer has clearly crossed the line into entrapment. The accused would not have engaged in the illegal conduct were it not for the officer’s intentionally getting them intoxicated.
Mistake – As noted above, the statutes relating to prostitution and solicitation are extremely vague, allowing prosecutors to charge people depending on the circumstances. Considering the possibility of undercover operations and the secrecy that surrounds the propositioning and solicitation of prostitution, it is not surprising that prostitutes will attempt to use codes and euphemisms for their activities. As a result, it is possible that someone accused of solicitation was not intending to agree to solicitation or prostitution. This is not the same as not intending to engage in prostitution. If one party reasonably thinks they are agreeing to a legal act (for example a massage), while the other believes they are agreeing to a sexual act, then the person agreeing to the legal act has not committed solicitation. The defense of mistake will get the charges dropped or dismissed in any situation where the charges stemmed from an innocent mistake.
Lack of Overtness – The laws against prostitution and solicitation require that the crimes be “overt”. In other words, if there was no “overt” agreement to exchange payment for sexual favors, then there has been no prostitution or solicitation. The “Lack of Overtness” defense, is similar to the defense of mistake and relies on the vagueness of the supposed “offer” or “acceptance”. In other words, if it is unclear whether the offer or acceptance included the exchange of payment, then there has been no “overt” solicitation or prostitution and the charges against you should be dropped or dismissed.

Is there anything else I should know?

Yes. Prostitution and Solicitation are complex crimes. The specific circumstances of each individual charge will change how it is handled. For example:

First Offenses – Generally speaking, judges will not impose maximum penalties for a first conviction and will instead impose probation or lesser penalties. Subsequent convictions will increase the penalties imposed.
Plea Deals – Often, the prosecutor will offer a plea deal where the accused can agree to dismiss the charge, or to lessen the charges to something else, in exchange for completing various requirements. The most common requirements include:
- Fines;
- Community Service;
- Completing classes on AIDS awareness or the dangers of prostitution; and
- Avoiding further arrest or citation for a certain amount of time (often referred to as “stay out of trouble” or “SOOT” for short).

If such a plea deal is agreed upon, then after completing your requirements, the charges against you can be:

Dismissed;
Changed to the crime of trespassing; or
Changed to the crime of disorderly conduct.

Having the charges altered to trespassing or disorderly conduct is generally preferred because they do not carry the negative stigma of prostitution and solicitation.

Repeat Offenders – While judges are generally lenient on first time offenders, repeat offenders are not likely to get the same treatment. Subsequent convictions will almost certainly increase the penalties for conviction. Moreover, if the soliciting was taking place in casinos, and you are convicted 3 times within a 5 year period, then the prosecutor can add on the charge of “repeated casino solicitation” which is also a misdemeanor and can increase your sentence by:
- Up to 6 months in jail; and/or
- Possible fines up to $1,000.
Sealing Records – 2 years after a conviction for prostitution, the convicted party can petition and request that the court seal the record of the conviction unless:
- The charges were dismissed without a conviction. The party can then request the records be sealed immediately;
- The party is convicted for a subsequent charge of prostitution or solicitation. Generally, the person would then have to wait another 2 years to have the records sealed for both; or
- The conviction was for prostitution after having knowledge of positive HIV test results, in which case the convicted party must wait 15 years before filing such a request;

What should I do if I’ve been charged with Prostitution or Solicitation?

As with any crime, it is very important that you speak with an experienced criminal defense attorney as soon as possible so that you can discuss the specific circumstances as well as any defenses that may apply to your case.