As a criminal defense attorney, I’ve been representing men charged with soliciting a prostitute for more than 20 years. We fight these cases aggressively to help our clients avoid a plea to Florida Statute Section 796.07(2)(f) because of the draconian sanctions and collateral consequences that come with that plea.
Personally, I don’t think soliciting sex between two consenting adults should be a crime at all. Over the years, I’ve become more convinced that arresting, prosecuting, and publically shaming men for soliciting sex is not a great approach. These prosecutions probably have very little impact on prostitution.
At the same time, prosecuting women for offering to commit prostitution is even more problematic because it often leaves the women in a more vulnerable position while making it harder to find a regular job. And the time and money wasted on prosecuting these crimes leave fewer resources to investigate and prosecute real sex crimes with real victims.
The men arrested for soliciting a prostitute are caught up in elaborate sting operations created by the police. The police actually manufacture the crime. In these sting operations, undercover officers pose as prostitutes and post ads online. If a man responds to the ad, the undercover officer works hard to convince the man to come to a local house or hotel room to meet. As soon as the man enters the room, the undercover detective mentions paying for sex. Then other officers enter the room to make an arrest. In one day, dozens of men can be arrested in a single sting operation at one location.
Prostitution between two consenting adults is not the same as human trafficking. Even more importantly, these types of prostitution stings targeting misdemeanor charges do absolutely nothing to impact human trafficking. Most real criminals know how to avoid these types of sting operations. As a result, only the most novice users of prostitutes get caught up in these sting operations.
For these reasons, I find it particularly frustrating that the Florida legislature passed CS/CS/SB 540 in 2019. That legislation created Florida Statute Section 943.0433 – Soliciting for Prostitution Public Database which requires FDLE to create and maintain a public database listing the name, address, and photograph of anyone who is convicted of Section 796.07(2)(f), F.S. This database is a complete waste of millions of dollars and does absolutely nothing to make the public safer.
Names are added to the database for any ” of conviction” Section 796.07(2)(f), F.S., a misdemeanor, regardless of whether the court ordered an “adjudication of guilt” or “withheld adjudication.” To complicate the matter even more, if a person receives a withhold of adjudication, they are eligible to petition to seal the criminal history record.
Not only does FDLE have to add the name to the database as required by this new legislation, but five years later, it will have to remove it. In fact, Section 943.0433, F.S., requires FDLE to automatically remove the criminal history record of a person on the database for a violation of s. 796.07(2)(f), F.S., if:
- the person has no prior convictions for violating Section 796.07(2)(f), F.S.;
- the person has no subsequent conviction for violating Section 796.07(2)(f), F.S.; and
- the person has not committed any other offense within that time that would constitute a sexual offense, including, but not limited to, human trafficking or an offense that would require registration as a sexual offender.
Although the statute says the removal is automatic, FDLE created special procedures in Florida Administrative Code 11D-11.002 (listed below) that require anyone seeking removal from the database to submit a completed Petition for Removal from Along the Solicitation for Prostitution Database, form FDLE/SFPDB-01, revised 05/21 to SolicitingDatabase@fdle.state.fl.us.
The petition references an “order granting expunction” suggesting that FDLE will remove the information from the database if the record is expunged. The only way an expunction would be granted after a plea to Section 796.07(2)(f), F.S., is if the person qualified for a human trafficking expunction under Section 943.0583 which is extremely rare.
The petition does not mention the more common scenario in which a person enters a plea to Section 796.07(2)(f), F.S., gets a withhold of adjudication, and then petitions the court to seal the record. Such petitions to seal the record are almost always granted by the court. If the record is sealed, will FDLE remove it from the database?
Update on 7/27/22: An Assistant General Counsel at Florida Department of Law Enforcement (FDLE) tells me FDLE recently decided that it will remove the record from the database if a petition is submitted with the order that seals the record even though that doesn’t appear to be allowed by Section 943.0433. So the person has to write in the additional information on the petition form that FDLE created.
Why even have a public database for records that are eligible to be sealed or expunged? It makes no sense unless you want to waste money and pretend you are doing something about human trafficking when you are actually doing nothing helpful at all.
Why Florida’s Public Database for Soliciting a Prostitute is a Bad Idea
This database is a bad idea for several other reasons. First, the public database serves no purpose other than to embarrass or shame men convicted of this particular crime which is charged as a misdemeanor. The database includes their name, picture, and address. What does the legislature think the public will do with this information?
Second, the statute is not narrowly tailored because victims of human trafficking might be listed in that database. Victims can also be charged with soliciting under Section 796.07(2)(f), F.S. More importantly, not all victims of human trafficking will be able to expunge their record under Section 943.0583 because of its strict requirements.
Third, the money and time needed to create and maintain the database could be better spent on investigating or prosecuting the most serious felony sex crimes. Instead, each clerk’s office has a new unfunded mandate that requires it to set up a way to report these cases to FDLE. Then FDLE had to set up and maintain the database to accurately list the information. Additionally, FDLE needs a way to automatically delete the information five years later if the person is eligible which can only be determined by conducting a particular kind of background check that would otherwise not be needed.
Fourth, the database will necessarily list only the least dangerous people. The only men arrested for Section 796.07(2)(f), F.S., are those caught up in an elaborate sting operation created by law enforcement. Any actual sex trafficker or experienced consumer of the services performed by prostitutes would easily spot the sting operation and avoid it. As a result, only the most novice user of these services would respond to the ad or get arrested for going to meet the undercover detective posing as a prostitute.
Fifth, most people who can afford to hire a good attorney would avoid a conviction for Section 796.07(2)(f), F.S. by fighting the charge. And those charges will be fought more vigorously because of all the draconian sanctions that come with a plea to Section 796.07(2)(f), F.S., including up to 12 months in jail or on probation a $5,000 civil penalty (in addition to fines and court costs), testing for sexually transmitted diseases, a requirement to take a human trafficking education course, and a possible requirement to immobilize any vehicle used to commit the crime for sixty (60) day.
Instead, a plea to Section 796.07(2)(f), F.S. can be avoided by:
- getting the charge dropped on the merits of the case after filing motions to exclude, suppress, or dismiss;
- getting the charge dropped after entering a diversion program; or
- getting the charge amended to a less serious offense such as disorderly conduct or subjection 796.07(2)(b) or (2)(h).
According to a recent article by the ABC Action News WFTS I-Team found, State Attorney Andrew Warren was quoted as saying that nearly 50% of the people arrested for Section 796.07(2)(f), F.S., went into a diversion program because it was a first-time offense. Mr. Warren also estimated that in another 25% of the cases, the person enters a plea to an amended charge under subsection 2b or 2h. The remaining 25% of cases are still pending before the court. In other counties, diversion is not allowed for these types of charges.
Sixth, the clerk’s offices and FDLE can’t figure out a good way to add the names to the database. Until recently, only one person’s name could be found on the list for the entire state even though the database launched on January 1, 2021. Just in Hillsborough County, the sheriff’s office arrested 262 people for soliciting a prostitute in 2021. Thousands more of these arrests occur across the rest of the state each year.
According to the FDLE website, the database will be updated weekly upon receipt and review of individuals who meet the criteria for inclusion in the database in accordance with F.S. 943.0433 and Rule 11D-11. To access the Soliciting for Prostitution Public Database information, you have to open or download a file. As of 6/27/2022, 72 men were listed on the database.
To add to the confusion, the statutory scheme is poorly worded since Section 796.07(5)(e) provides that a person should only be listed in the database if:
- the person entered a plea of guilty or nolo contender, regardless of whether adjudication is withheld; and
- “there is evidence that such person provided a form of payment or arranged for the payment of such services.”
The phrase “providing a form of payment or arranging for the payment of such services” is not an element of the offense. As a result, there is no good way to determine whether such evidence exists or not. In these sting operations, the john does not always provide or arrange for any form of payment. Soliciting can include a mere “request” regardless of whether money is actually paid or any sex act is actually committed.
The only good news is that the database requirement will automatically be repealed on January 1, 2024, unless reviewed and saved from repeal by the Florida Legislature.
Let us hope the legislature figures out that this database was a complete waste of time and money.
SOLICITING FOR PROSTITUTION DATABASE
(1) For implementation of this rule chapter the term “subsequently committed” as provided in Section 943.0433(2)(a), F.S. shall mean: having been found guilty as a result of a trial or having entered a plea of guilty or nolo contendere, regardless of whether adjudication is withheld.
(2) For implementation of this rule chapter the term “full legal name” as provided in Section 943.0433(3)(a), F.S. shall mean the full name as recorded in the criminal history record provided by the clerk of court pursuant to Section 796.07(5)(e), F.S.
(3) For implementation of this rule chapter the term “last known address” as provided in Section 943.0433(3)(b), F.S. shall mean the last known address as recorded in the criminal history record provided by the clerk of court pursuant to Section 796.07(5)(e), F.S.
(4) For implementation of this rule chapter the term “color photograph” as provided in Section 943.0433(3)(c), F.S. shall mean a photograph of the individual as contained in the criminal history or booking record of the individual if applicable.
Rulemaking Authority 943.03(4), 943.0433(4) FS. Law Implemented 943.0433 FS. History–New 5-5-20, Amended 5-20-21.
(1) Upon receipt of a criminal history record that the clerk of court has determined to meet the requirements of Section 796.07(5)(e), F.S. for inclusion on the Soliciting for Prostitution Database, the Department shall add such record to the database as required by Section 943.0433(1), F.S.
(2) The Department shall remove a criminal history record from the database only upon satisfaction of the requirements in Section 943.0433(2), F.S. Petitioners seeking removal of the database shall submit a completed Petition for Removal from the Solicitation for Prostitution Database, form FDLE/SFPDB-01, revised 05/21, hereby incorporated by reference, https://www.flrules.org/Gateway/reference.asp?No=Ref-13163.
Rulemaking Authority 943.03(4), 943.0433(4) FS. Law Implemented 943.0433 FS. History–New 5-5-20, Amended 5-20-21.