Constitutionality of Prostitution Statutes

This article discusses two seminal cases regarding local ordinances prohibiting prostitution charges:

  • Wyche v. State, 619 So.2d 231 (Fla.1993); and
  • Holliday v. City of Tampa, 619 So.2d 244 (Fla.1993).

The constitutionality of any prostitution statute must be looked at carefully. Challenges can be brought to the statute on its face or as applied in a particular case.

If you are charged with soliciting prostitution or offering a lewd act, contact a criminal defense attorney at the Sammis Law Firm in Tampa, Hillsborough County, FL. We aggressively fight a wide variety of felony and misdemeanor sex crimes.

Overbroad or Vague Prostitution Statutes

In Wyche, the Supreme Court of Florida found that the City of Tampa’s ordinance prohibiting loitering for the purpose of prostitution was unconstitutional. The ordinance was considered  “too vague because a violation of the law is determined based on law enforcement officers’ discretion” and as overbroad by “implicat[ing] protected freedoms” such as “talking and waving to other people.” 619 So.2d at 234–35.

The City of Tampa prostitution ordinance in Wyche provided that it was unlawful for any person to “[l]oiter, while a pedestrian or in a motor vehicle, in or near any thoroughfare or place open to the public in a manner and under circumstances manifesting the purpose of inducing, enticing, soliciting, or procuring another to commit an act of prostitution, sodomy, fellatio, cunnilingus, masturbation for hire, pandering, or other lewd or indecent act.” Id. at 233 n. 2.

The prostitution ordinance also listed “circumstances” that law enforcement may consider when determining whether this “purpose is manifested.” Under the Tampa ordinance in Wyche, law enforcement was permitted to consider the following:

….such person is a known prostitute, pimp, sodomist, performer of fellatio, performer of cunnilingus, masturbator for hire or panderer and repeatedly beckons to, stops or attempts to stop, or engages passers-by in conversation, or repeatedly stops, or attempts to stop motor vehicle operators by hailing, waving of arms or any bodily gesture for the purpose of inducing, enticing, soliciting or procuring another to commit an act of prostitution, sodomy, fellatio, cunnilingus, masturbation for hire, pandering, or other lewd or indecent act.

Id. at 233 n. 2

In the Wyche decision, the Florida Supreme Court found:

The ordinance limits the rights of those who have been previously convicted of prostitution to engage in noncriminal routine activities. The ordinance suggests that it is incriminating when a “known prostitute” “repeatedly beckons to, stops or attempts to stop, or engages passers-by in conversation, or repeatedly stops, or attempts to stop motor vehicle operators by hailing, waving of arms, or any bodily gesture.” Hailing a cab or a friend, chatting on a public street, and simply strolling aimlessly are time-honored pastimes in our society and are clearly protected under Florida as well as federal law. All Florida citizens enjoy the inherent right to window shop, saunter down a sidewalk, and wave to friends and passersby with no fear of arrest.

Id. at 235 (citation and footnote omitted).

Additionally, the Florida Supreme Court concluded that the city ordinance, which prohibits loitering “in a manner and under circumstances manifesting the purpose of” engaging in acts of prostitution, does not require proof of unlawful intent as an element of the offense. Indeed, the ordinance allows arrest and conviction for loitering under circumstances merely indicating the possibility of such intent, such as beckoning to passersby and waving to motorists, which could be occurring without any intent to engage in criminal activity. Thus, the ordinance affects and chills constitutionally protected activity. Id.

In Holliday v. City of Tampa, 619 So.2d 244 (Fla.1993), the court invalidated an ordinance making it “unlawful for any person to loiter in a public place in a manner and under circumstances manifesting the purpose of illegally using, possessing, transferring or selling any controlled substance.” Id. at 244 n. 2. This drug loitering ordinance contained another provision that listed circumstances that could be considered when determining if that purpose had been manifested.

The prostitution ordinance in the Holliday decision contained the additional requirement that “the person’s affirmative language or conduct must be such as to demonstrate by its express or implied content or appearance a specific intent to induce, entice, solicit or procure another to possess, transfer or buy a controlled substance illegally.” Id. at 245 n. 2. The Florida Supreme Court, in Holliday, found that “[b]ased on the authority of Wyche, we find that the ordinance at issue, in this case, is unconstitutional” since, among various conclusions, the ordinance was overbroad and vague. Id. at 245.

Public Policy Reason’s that Prostitution is Prohibited

The courts in Florida have looked at the harm caused by soliciting a prostitute and other prostitution-related offenses. The courts look at the public policy considerations behind the prohibition against prostitution. For example, the findings of the 1990 Report of the Florida Supreme Court’s Gender Bias Commission (the “Supreme Court Gender Report”) as set forth in Balas v. Ruzzo, 703 So. 2d 1076, 1078-79 (Fla. 5th DCA 1997) [22 Fla. L. Weekly D2375a] found:

[T]he Florida Supreme Court Gender Bias Study Commission [ ] conducted an extensive investigation of prostitution in this state.

The Commission’s activities included interviews with law enforcement and corrections personnel, judges, public defenders, prosecutors, drug rehabilitation counselors, social workers, medical personnel, prostitutes, clients and pimps.

The Commission found prostitution to be prevalent and uniform throughout the state and law enforcement largely unable to deter it under prevailing social attitudes and judicial practices.

The Commission further found that prostitutes are often victims of economic, physical, and psychological coercion, that most persons do not chose to become prostitutes, but do so to survive, and that ninety percent of street prostitutes, both adult and children, are controlled by pimps who use a variety of coercive methods to maintain this control.

The Commission determined that clients and pimps are rarely prosecuted and, when prosecuted, receive light sentences; whereas prostitutes, who are mainly females, are frequently prosecuted and receive harsher treatment in the courts.

The Supreme Court Gender Report also notes:

The Commission has determined that prostitution is not a victimless crime. Its victims are the girls who run away from abusive and incestuous relationships at home. . . .

Report of the Fla. Supreme Court Gender Bias Study Commission, p. 25 (March 1990).

Fighting Unconstitutional Prostitution Charges in Tampa

If you are interested in fighting an unconstitutional prostitution charge in Florida, contact the attorneys at the Sammis Law Firm. In addition to the entrapment defense, criminal defense attorneys must consider the viability of filing a motion to dismiss the charges because the charges are unconstitutional on their face or as applied.

As recently as May 8, 2013, another city ordinance that criminalized loitering with intent to commit prostitution was struck down as constitutionally vague and overbroad, this time in the City of West Palm Beach. See City of West Palm Beach v. Chatman, 112 So. 3d 723 (Fla. 4th DCA 2013).

Your best defense against prostitution and other crimes motivated by sex is aggressively fighting the charges by filing all viable motions, including motions to suppress illegally obtained evidence and motions to dismiss based on insufficient evidence or constitutional challenges.

The goal in many of these cases is being able to seal or expunge the criminal record. Florida law also provides for important defenses to protect against entrapment in the solicitation of prostitution cases.

Learn more about how the undercover officers with the Polk County Sheriff’s Office run prostitution sting operations on Backpage in Polk County, FL.

Call us to discuss your case at (813) 250-0500.

This article was last updated on Monday, August 21, 2023.