Recent changes in California Legislation have altered the relationship between sex workers and the law. Though the act of prostitution remains illegal, this new legislation has established further protections for the rights of sex workers. However, understanding the California legislature surrounding sex work in California, while also acknowledging prostitution is still illegal, will allow citizens to protect themselves and exercise their due rights.
Is Sex Work or Prostitution Illegal in California?
Not all sex work is illegal in California, however, the act of prostitution is illegal. Even with recent legislative changes, prostitution remains illegal in California. Specifically, buying or selling sex is unlawful under Section 647(B) of the California Penal Code. The legal definition of prostitution is willingly engaging in sexual intercourse, or other lewd acts, for compensation. Most commonly, prostitution is for monetary compensation, but committing these actions in exchange for something of significant value is unlawful and considered prostitution under California law.
What is a Lewd Act?
Because the legal definition of prostitution includes engaging in lewd acts, it is crucial to understand what a lewd act is. California law defines a lewd act as a sex worker and a customer willingly engaging in acts for sexual pleasure that involve the: female breasts, genitals, or buttocks.
Payment for engaging in sexual or lewd acts does not have to occur directly between the sex worker and the customer, meaning that payments made by the customer to the sex worker’s boss, commonly known as their pimp, are still illegal. Further, because both the sex worker and the customer willingly engage in prostitution, prosecutors may charge them individually.
What are the Legal Penalties for Prostitution in California?
Though California has passed new pieces of legislation regarding the rights and protections afforded to sex workers, the act of prostitution in California remains illegal. Specifically, the act of engaging in and soliciting prostitution is criminal. Under existing legislation, engaging in and soliciting prostitution are misdemeanor offenses. These crimes are subject to the following legal penalties:
- A sentence of up to 6 months in county jail
- A possible fine of up to $1,000
- The fine a court applies is subject to increase depending on the number of offenses on their record.
New Laws Governing Prostitution in California
On January 1st of, 2020, California legislators passed two new laws, changing the protection of sex workers’ rights in all legal sectors, including the criminal.
Assembly Bill 5:
Before Assembly Bill 5 in California, the law considered sex workers independent contractors. However, since AB 5, there is a new procedure to determine whether regulations should classify someone as an independent contractor or an employee. For an employer to treat an individual as an independent contractor instead of an employee, the following three factors must be present:
- The worker is free to use their discretion to determine how, where, and when they perform their work.
- The type of work the worker is doing is outside of the typical kind of work the business conducts.
- The type of work the individual usually engages in is independent.
Individuals who have not considered whether they are independent contractors or employees may not understand the need for the clarifications included in AB 5. The simple answer is that the law typically provides employees with more protections and rights than independent contractors. Such as:
- Lunch Breaks
- Rest Breaks
- Right to access wage and hour benefits
- The legal right to be paid minimum wage
- Legal right to overtime pay
- Ability to access paid sick leave
- Access paid family leave
- The right to work in an environment that is free of discrimination and harassment
- Access to Worker’s Compensation
- Unemployment Insurance
- The right to have certain taxes paid by the employer
Senate Bill 233:
In addition to Assembly Bill 5, the California Legislature passed Senate Bill 233 to provide additional protections for sex workers. The bill aims to do so by achieving the following goals:
- It no longer allows condoms as evidence for prostitution and
- It gives all individuals the right to report a crime they have witnessed or experienced without being penalized for their involvement with sex work or drug use.
Before SB 233, law enforcement officers and prosecutors could collect condoms from the accused sex worker as evidence against them in court. Under SB 233, this is no longer legal cause for arresting or prosecuting an individual for engaging in sex work on the grounds of being found with condoms in their possession. More specifically, SB 233 sets no numerical limit on the number of condoms that a person can be carrying on their person at any specific time.
Alongside prohibiting the presence of condoms from being used as incriminating evidence, SB 233 also provides sex workers with immunity from arrest. For workers in the sex trade, this means that if they are the victim of a crime such as the following, California law does not allow the arrest or conviction of individuals for charges relating to sex work or drug use at, during, or around the time crime occurred.
Possible Crimes Include:
- Robbery
- Assault
- Domestic Violence
- Kidnapping
- Sexual Battery
- Stalking
- Human Trafficking
- Extortion
Reporting any of these crimes does not create a legal obligation for the reporting individual to continue assisting law enforcement with the case. Further, immunity from arrest does not require that the reporter to do so immediately. Immunity from arrest is a protection afforded to sex workers who have witnessed or been victims of these crimes, even if they chose to report the crime to authorities later. Though legislators are moving toward ensuring that the rights of all individuals are protected regardless of occupation, prostitution remains illegal in California.
Contact Pride Legal
If you or a loved one has been accused of a sex crime, we invite you to contact us at Pride Legal for legal counseling or further questions. To protect your rights, hire someone who understands them.