First Draft of Report #54 – Prostitution and Related Statutes SUBMITTED FOR ADVISORY GROUP REVIEW May 18, 2020 DISTRICT OF COLUMBIA CRIMINAL CODE REFORM COMMISSION 441 FOURTH STREET, NW, SUITE 1C001 SOUTH WASHINGTON, DC 20001 PHONE: (202) 442-8715 www.ccrc.dc.gov First Draft of Report #54 – Prostitution and Related Statutes This Draft Report contains recommended reforms to District of Columbia criminal statutes for review by the D.C. Criminal Code Reform Commission’s statutorily designated Advisory Group. A copy of this document and a list of the current Advisory Group members may be viewed on the website of the D.C. Criminal Code Reform Commission at www.ccrc.dc.gov. This Draft Report has two parts: (1) draft statutory text for a new Title 22E of the D.C. Code; and (2) commentary on the draft statutory text. The commentary explains the meaning of each provision and considers whether existing District law would be changed by the provision (and if so, why this change is being recommended). Any Advisory Group member may submit written comments on any aspect of this Draft Report to the D.C. Criminal Code Reform Commission. The Commission will consider all written comments that are timely received from Advisory Group members. Additional versions of this Draft Report may be issued for Advisory Group review, depending on the nature and extent of the Advisory Group’s written comments. The D.C. Criminal Code Reform Commission’s final recommendations to the Council and Mayor for comprehensive criminal code reform will be based on the Advisory Group’s timely written comments and approved by a majority of the Advisory Group’s voting members. The deadline for the Advisory Group’s written comments on this First Draft of Report #54 – Prostitution and Related Offenses is June 19, 2020. Oral comments and written comments received after this date may not be reflected in the next draft or final recommendations. All written comments received from Advisory Group members will be made publicly available and provided to the Council on an annual basis. First Draft of Report #54 – Prostitution and Related Statutes RCC § 22E-4401. Prostitution (a) Offense. An actor commits prostitution when that actor knowingly: (1) Pursuant to a prior agreement, express or implicit, engages in or submits to a sexual act or sexual contact in exchange for any person receiving anything of value; (2) Agrees, expressly or implicitly, to engage in or submit to a sexual act or sexual contact in exchange for any person receiving anything of value; or (3) Commands, requests, or tries to persuade any person to engage in or submit to a sexual act or sexual contact in exchange for any person receiving anything of value. (b) Immunity. (1) A person does not commit an offense under this section when that person is under 18 years of age. (2) The Metropolitan Police Department shall refer any person under 18 years of age that is suspected of violating subsection (a) of this section to an organization that provides treatment, housing, or services appropriate for victims of sex trafficking of children under § 22E-1805. (c) Suspension and dismissal of proceedings. (1) When a person is found guilty of violation of RCC § 22E-4401 the court may, without entering a judgment of guilty and with the consent of such person, defer further proceedings and place him or her on probation upon such reasonable conditions as it may require and for such period, not to exceed one year, as the court may prescribe. Upon violation of a condition of the probation, the court may enter an adjudication of guilt and proceed as otherwise provided. The court may, in its discretion, dismiss the proceedings against such person and discharge him or her from probation before the expiration of the maximum period prescribed for such person’s probation. If during the period of probation such person does not violate any of the conditions of the probation, then upon expiration of such period the court shall discharge such person and dismiss the proceedings against him or her. Discharge and dismissal under this subsection shall be without court adjudication of guilt, but a nonpublic record thereof shall be retained solely for the purpose of use by the courts in determining whether or not, in subsequent proceedings, such person qualifies under this subsection. Such discharge or dismissal shall not be deemed a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime (including the penalties prescribed under RCC § 22E-606 for second or subsequent convictions or other similar provisions) or for any other purpose. (2) Upon the dismissal of such person and discharge of the proceedings against him under paragraph (1) of this subsection, such person may apply to the court for an order to expunge from all official records (other than the nonpublic records to be retained under paragraph (1) of this subsection) all recordation relating to his or her arrest, indictment or 1 First Draft of Report #54 – Prostitution and Related Statutes information, trial, finding of guilty, and dismissal and discharge pursuant to this subsection. If the court determines, after hearing, that such person was dismissed and the proceedings against him or her discharged, it shall enter such order. The effect of such order shall be to restore such person, in the contemplation of this law, to the status he or she occupied before such arrest or indictment or information. No person as to whom such order has been entered shall be held thereafter under any provision of any law to be guilty of perjury or otherwise giving a false statement by reason of failure to recite or acknowledge such arrest, or indictment, or trial in response to any inquiry made of him or her for any purpose. (3) A person who was discharged from probation and whose case was dismissed pursuant to paragraph (1) of this subsection shall be entitled to a copy of the nonpublic record retained under paragraph (1) of this subsection but only to the extent that such record would have been available to the person before an order of expungement was entered pursuant to paragraph (2) of this subsection. A request for a copy of the nonpublic record may be made ex parte and under seal by the person or by an authorized representative of the person. (d) Penalties. Prostitution is a Class [X] crime, subject to a maximum term of imprisonment of [X], a maximum fine of [X], or both. (e) Definitions. The term “knowingly” has the meaning specified in RCC § 22E-206; and the terms “actor,” “sexual act,” and “sexual contact” have the meanings specified in RCC § 22E-701. Commentary Explanatory Note. The RCC prostitution offense prohibits engaging in, agreeing to, or soliciting for a commercial sex act in exchange for any person receiving anything of value. Along with the RCC patronizing prostitution offense,1 the RCC prostitution offense replaces two distinct offenses in the current D.C. Code: prostitution2 and soliciting for prostitution.3 Subsection (a) specifies the prohibited conduct for the revised prostitution statute. Paragraph (a)(1) specifies one type of prohibited conduct—pursuant to a prior agreement, express or implicit, engaging in or submitting to a sexual act or sex contact in exchange for any person receiving anything of value. The phrase “in exchange for” specifies the transactional nature of the sexual act or sexual contact and is satisfied if any person actually receives anything of value or if anything of value was promised to any person.4 Subsection (a) specifies a culpable mental state of “knowingly” and per the rule of construction in RCC § 22E-207, the “knowingly” culpable mental state applies to all the elements in paragraph (a)(1). “Knowingly” is a defined term in RCC § 22E-206 that here means the actor must be “practically certain” that the actor, pursuant to a prior agreement, 1 RCC § 22E-4402. 2 D.C. Code § 22-2701. 3 D.C. Code § 22-2701. 4 If anything of value is promised to any person as part of a prior agreement, this conduct also falls under paragraph (a)(2)—agreeing, expressly or implicitly, to engage in or submit to sexual activity in exchange for any person receiving anything of value. 2 First Draft of Report #54 – Prostitution and Related Statutes express or implicit, engages in or submits to a sexual act or sexual contact in exchange for any person receiving anything of value. The person receiving anything of value may be the actor or a third party. “Sexual act” and “sexual contact” are defined terms in RCC § 22E-701 that prohibit specific types of sexual penetration or sexual touching. Paragraph (a)(2) specifies the second type of prohibited conduct—agreeing, expressly or implicitly, to engage in or submit to a sexual act or sexual contact in exchange for any person receiving anything of value. The phrase “in exchange for” specifies the transactional nature of the sexual act or sexual contact and is satisfied if any person receives anything of value or if anything of value was promised to any person. Subsection (a) specifies a culpable mental state of “knowingly” and per the rule of construction in RCC § 22E-207, the “knowingly” culpable mental state applies to all the elements in paragraph (a)(2). “Knowingly” is a defined term in RCC § 22E-206 that here means the actor must be “practically certain” that the actor agrees, expressly or implicitly, to engage in or submit to a sexual act or sexual contact in exchange for any person receiving anything of value. The person receiving anything of value may be the actor or a third party.