Either the provider or the client can slip up and create an act of prostitution
Originally Posted by Bighawg11
Kind of. Prostitution is generally thought of as three elements:
* sex (actus reus);
* giving money or other consideration (actus reus); and
* the sex is for the money (mens rea).
The sex and money are acts that you do. But the third element is the hardest to prove. It is also not something you do. It's a mental state, known as a mens rea. Usually, the codification of prostitution will require either intent or knowledge level of mens rea. That means that one party (e.g., the girl) may think the money is for the sex, but the other party may think the money is just a gift and was unrelated to the sex (e.g., the guy). In this case, legally only the hooker committed prositution. The guy did not commit solicitation because the guy did not have the requisite mens rea.
That isn't to say that one party's statements cannot be evidence of the other's mental state. For example, if the girl testified that the man offered her sex for money, that would tend to prove the mens rea element for the other party.
LEO can hassle just about anyone - if you are innocent it is unfortunate, but if you are really guilty all the deception and tiptoeing around the issue suddenly become a cover lie that you have to manage carefully or you'll convict yourself.
Originally Posted by Bighawg11
Yes, LEO can arrest you with probable cause. Otherwise you may have a Bivens action or an 42 U.S.C. 1983 action.
But you are assuming some stuff here, mainly that your point of view is a "clever lie." The implication, here, is that the actors think they're committing prostitution. The irony is that belief makes it prositution, because they now have the mens rea. If they don't believe the money is for the sex, it is legally not prosititution. That being said, the actors could still be prosecuted and found guilty because the jury only sees the evidence, not their state of mind. Funny, eh? Believe it or not, some people (me included) actually believe that the far end of the spectrum (sugar babies) is NOT prositution.
By and large, "almost busts" don't happen. Busts happen and then LEO sorts out who might be innocent vs who might be guilty. If you are in the midst of a bust you are in the midst of a bad situation and only shutting up and waiting for the opportunity to call a lawyer is going to save you.
Originally Posted by Bighawg11
I agree. Two take aways:
1) Never, ever agree that money is being exchanged for sex to your counterpart. I would even encourage you to walk if this is brought up by your counterpart.
2) If the police show up and start asking questions, invoke your right to be silent and ask for a lawyer. Miranda kicks in as soon as (i) you're in custody (a reasonable person would think you are not free to leave), and (ii) you're being interrogated. So if a cop is asking you questions and a reasonable person would not feel free to leave, Miranda is probably in play. But you can waive Miranda. There are exceptions to Miranda. So, as my Crim Pro professor loved to say, SHUT THE FUCK UP.
I might even suggest that shenanigans designed to cover up our intentions make it worse. Why, for example, would a married man connect with a woman online arranging a dinner date and agree to drop her off at ... a hotel (known to house prostitution)? Attempting to explain that only creates a story that has to match her story AND then you have to repeat AND then you have to hope it works. All while your SO wonders why you are needing to be bailed out.
Originally Posted by Bighawg11
Your attorney will argue that this is just a relationship. Cheating is not illegal. It's not prositution. More than likely, you'll plea out or charges will be dropped because there is a lot of risk the prosecution cannot prove the mens rea element. BUT this only works if you shut the fuck up.