Owen and Joe go out to a bar. Owen spots a gorgeous Angelina Jolie lookalike. Owen sends Joe to the end of the bar in order to ask Angelina whether or not she would be interested in going back to a hotel with them. After a brief conversation, Joe returns to Owen. He tells Owen that Angelina indicated that she might be interested but wanted to know exactly what they wanted to do. She also added that nothing in life is free. Owen and Joe confer, and Owen sends Joe back to her to communicate that he and Joe want to have sexual intercourse with her, and that they will each pay $150. When Joe passes on the message, Angelina immediately pulls out her police badge and reveals she is actually Sgt. Helga Rock. She arrests both men for solicitation to commit prostitution.
At trial, Joe’s lawyer makes a case that Joe can’t be convicted of solicitation because Sgt. Rock never agreed to have sex. He also points out that there was never a substantial step toward the commission of the intended crime. (With no substantial step, Joe cannot be convicted of solicitation.)
Owen’s lawyer makes the additional point that Owen cannot be convicted because he never communicated the solicitation to the officer; Joe communicated the solicitation.
You are the judge. Address the arguments of the defense attorneys. Are they correct? Is either man guilty of solicitation? If so, why? If not, why not?
In order to answer this question really well, we would need to know what state we are in so that we could look up the specifics of the law of sexual solicitation. Without knowing the exact language of the law in the jurisdiction where Joe and Owen live, I would argue that they both would be found guilty of solicitation, particularly if their lawyers do not bring up the issue of entrapment.
To understand my reasoning, let us look at Utah’s law on sexual solicitation in the link below. According to the link, a person is guilty of this crime if he or she “offers or agrees to commit any sexual activity with another person for a fee.” In this case, it is clear that Joe has done this. Joe has clearly communicated the nature of the sexual acts that are to be performed and he has named a price for those acts. As the law makes clear, there is no need for the officer to actually agree to have sex. Solicitation occurs when the offer is made. Furthermore, there is no need for any further substantial step towards committing the crime. This is not a crime like attempted murder where a substantial step is needed. The crime consists of the offer that Joe made.
While Owen did not actually communicate with the officer, he is no less guilty of solicitation. The reason for this is that he is an accomplice to the crime. An accomplice is someone who helps or encourages another to commit a crime. Clearly, Owen was instrumental in getting Joe to ask the woman to have sex with them and then to offer money in the second conversation. Owen is an accomplice to the crime and can therefore be found guilty of the same crime that Joe committed.
As the judge in this case, I would reject the arguments of the defense attorneys. Solicitation can be proven even if the officer does not agree to have sex for money. Solicitation occurs when the offer is made, not when there is an agreement and/or further substantial steps towards a crime. Finally, an accomplice is guilty of the same crime as the person who actually committed the crime.
If I am the judge this is either a pretrial motion or this is a bench trial without a jury. The first addresses legal arguments, the second addresses factual arguments. Though as a practical matter a bench trial will do both for expedience.
I am going to throw the cases out because Owen, Joe and Angelina only talked. But, let me say at this point Owen and Joe probably would have been charged with conspiracy, particularly since both were charged with solicitation.
In any event the problem with the prosecution's case is that the cop did not let these two go to the next step. All there was was talk. Approaching someone with the statement "sex for 150 bucks" isn't enough. He or they must do something in furtherance of the crime. The cop should have asked for and taken the money preferably from each of them or followed them to the hotel room and then taken their money. Failing that there is no crime.