Present Legal Status of Prostitution
Prostitution in Maryland is illegal. It is a misdemeanor under Criminal Law § 11-306(3) of the Maryland Criminal Code with a maximum penalty of 1 year in jail and/or a fine of $500, although a prosecutor might be willing to negotiate a plea to another minor offense for a first-time offender.
Nevertheless, the state’s anti-prostitution statute really only applies to "street prostitution." An exception is made for persons charged with violating that statute who are engaged in street crimes only for the purpose of obtaining food, shelter, clothing, medical care, or other necessities of life. Gay nightclub bartenders, lap dancers, and call girls are not eligible for such an exception.
Criminal Code § 11-306 (3) also prohibits knowingly indicating in any way that another person participates or is willing to participate in sexual activity in exchange for anything of value. This section of the statute not only prohibits prostitution and "pimping," but also what would otherwise be considered protected speech under the First Amendment. Therefore, the law is often cited by the police to prosecute people who are not actually guilty of violating Maryland’s anti-prostitution statute.
One example is the conviction of a woman in 2016 who was charged with "disorderly conduct" for conducting a photo shoot on the beach in Ocean City, Maryland. She was wearing a white dress at the time, which prompted a passerby to mistakenly assume that the woman was a prostitute soliciting sexual favors on the beach. Although the court eventually overturned her conviction, the case demonstrates the unnecessary hostility against sex workers that can result from the overbroad interpretation of Maryland’s statutory provision prohibiting the induced use of a person for sexual purposes.
Another more recent example of the ways in which this statute is applied by Maryland courts to prosecute the non-sex workers in the sex industry is the conviction of the owner of an adult business in Upper Marlboro, Maryland on criminal charges of promoting prostitution at his adult business. The charges were based upon his permitting prostitutes to work out of the business .
This case is noteworthy because although the statute does not prohibit operating a business that provides services to prostitutes, including massage parlors, strip clubs, and escort services, Maryland courts have nevertheless upheld criminal prosecutions of businesses for merely allowing or facilitating prostitution to occur. In the case at hand before a Prince George’s County District Court, the defendant had been charged with promotion of prostitution, among other things. However, during the trial it was revealed that no prostitution had occurred or was about to occur on the premises. Moreover, the evidence showed that those who were renting space in the defendant’s business were only using it for legitimate massage therapy services. On contested appeal, the district court’s judgment was reversed on the basis of insufficient evidence to sustain a conviction for either promoting prostitution or permitting premises to be used for prostitution.
As noted in the opening to this section, the law against prostitution in Maryland applies only to "street prostitution." Therefore, prosecutors cannot prove promotion of prostitution unless they can identify the sex buyers and women involved in sex acts who will testify as to the agreement to engage in sexual intercourse for money. Of course, they can attack "escort service" and "masseuse" pimps with regularity because those people will be present to testify themselves, or so goes the theory.
Because the vast majority of sex offenses involves street prostitutes, we seldom see the charge of promoting prostitution unless there is an actual street prostitution sting. When there is such a sting, the charge of promoting prostitution is leveled against several street prostitutes who are arrested as part of the sting operation. The police then persuade them to testify against those who were charged with soliciting prostitution.
Due to the infrequency of arrests for truly non-street prostitution in Maryland, we are not likely to see many cases like the defendant won in the case discussed above. The bottom line is that prostitution is illegal in Maryland, although prosecutors regularly apply the anti-prostitution statute to conduct that may or may not qualify as prostitution.
Criminal Sanctions for Engaging in Prostitution
The legal penalties for engaging or soliciting prostitution in Maryland are outlined in Criminal Law sections 11-301 through 11-303. These provisions are generally applied throughout the state. Substantial differences in how those laws are enforced do apply in individual jurisdictions.
Under Criminal Law 11-301, a person may not engage in sex for hire, which is defined as engaging in any act with another with the intent to in exchange for something of value, including money. Alternate definitions include: seeking to engage in a sexual act, soliciting another to engage in a sexual act (whether or not in exchange for compensation), offering to engage in, or agreeing to engage in a sexual act in exchange for anything of value (including money), recruiting others in any way to engage in a sexual act for pay, any attempt to engage in any of the above scenarios, offering to engage in a sexual act with someone else, or engaging in anything of the above act in another state with the understanding of the intent to be involved with the act in Maryland.
The punishment for a first offense under Criminal Law 11-301 is a fine of up to $500, or not more than 90 days in jail, or both. For a second offense, 90 days to 1 year in jail, or a fine not more than $3,000. A third or subsequent offense is a misdemeanor subject to a fine of not more than $5,000, or not less than two years and not more than 5 years in prison.
Criminal Law 11-302 is the solicitation of a prostitute (which is sometimes called "Johning"), but is otherwise identical to 11-301.
It is important to remember that a charge under Criminal Law 11-301 includes many things, like just offering to engage in a sexual act for money, and could be charged under 11-302. Further, there is now a new law (HB 127) that allows for a convicting sentences to be expunged after 3 years. That law applies to all cases where a sentence is wholly probation before judgment or probation. So, all the offender would have to do is get PBJ and then wait three years. Unfortunately, the law does not apply to convictions where there have been other sentences imposed, as in cases of repeated offenses.
Rules Governing Activity Associated with Prostitution
In addition to those caught engaging in sexual conduct for a fee, other offenses regarding prostitution include: solicitation, client of prostitution, conducting a brothel and sex trafficking.
§ 11-304 of the Criminal Law states that a person may not knowingly engage in prostitution or assignation in a place open to public view. Violation is a misdemeanor with a fine of up to $500 and/or a maximum of 90 days imprisonment.
"Client of prostitution" means a person who is solicited in a place open to public view to engage in sexual conduct for a fee. This is also a misdemeanor with maximum penalties of $500 and/or a jail sentence of up to 90 days.
Conducting a "brothel" is defined as "knowingly" permitting certain unlawful activity to occur on your property. The activity consists of "assignation, prostitution, criminal conspiracy, lewdness, prostitution, assignation, or human trafficking." It also includes the "direct or indirect acceptance of compensation for the conduct of such activities."
"Sex trafficking" means knowingly engaging in the recruiting, enticing, harboring, transporting, providing, obtaining, advertising or soliciting of a minor or another person who is 18 or older for the purpose of commercial sex acts. Conviction results in a jail sentence of up to 25 years.
A person involved in sex trafficking that involves a person under the age of 18 – knowing or having reason to know that person is 18 years old – may be fined up to $50,000 and sentenced to life imprisonment. Being considered "involved" is not limited to the acts mentioned above and also includes "engaging in prostitution, patronizing prostitution, or otherwise profiting from prostitution or trafficking."
The Maryland General Assembly made it clear that solicitation of prostitution is punishable by imprisonment not exceeding 1 year or a fine not exceeding $500 or both. They also wanted there to be a "strong public policy" against human trafficking and require "judges to sentence defendants convicted of infecting another person with HIV to three years." Anyone convicted of human trafficking shall face a minimum of 15 years imprisonment.
Police and Prosecutor Practices
Law enforcement and legal proceedings generally begin to fall into line following the events that led up to a prostitution charge being filed. In other words, an arrest is not likely to happen until after law enforcement has probable cause to believe that a crime has been committed. In many such cases, this means a sting operation will have taken place, which typically involves a law enforcement official posing as a customer to prove that an offer of sexual services for money took place.
If arrested, the defendant will be filed in criminal court and typically the case will include a set of charges that most often include solicitation, but at times may also include additional charges associated with solicitation or related activity. Many laws are written in a way that can facilitate more charges, though there are some charges for solicitation-related crimes that are written, shall we say, on the presumption that a case can be made for those charges.
For example, by its strict definition, criminal solicitation in Maryland applies to anyone who is guilty of inducing another person to engage in a behavior that would constitute a criminal act. This means solicitation does not directly require that the solicit-ee be guilty of the crime that he/she was solicited to commit. Conversely, prostitution in Maryland does require that one person solicits another for sexual favors in exchange for compensation .
In a case involving solicitation for prostitution, there may be allowances made for the defendant’s argument that his/her alleged intended purpose with the solicitation was other than sex. For example, the defendant may argue that he/she was instead looking to engage in criminal activity such as selling drugs. Since prostitution generally involves the selling of drugs along with sex, a judge may find at least one of those areas of supposed intent to be believable, which can reduce the offense to just one such offense.
While criminal and civil consequences for prostitution charges will vary based on the jurisdiction, in Howard County, MD, solicitation is a misdemeanor under criminal law, and is usually punishable with up to a year in jail and/or a $500 fine. The crimes of prostitution and/or related offenses, meanwhile, are misdemeanors punishable with up to 18 months in jail and/or a $3,000 fine. Another significant consideration stemmed from the legalization of "health clubs," or brothels, by Baltimore City in the early 1990s. Rather than issuing a citation for prostitution, a law enforcement official may instead issue a citation for disorderly conduct. Though the two penalties are meant to be similar in consequence, the Municipal Court of Baltimore City has established a rule that solicitation for prostitution can only result in a penalty of a $30 fine.
Legislative Exceptions and Controversies
As with many laws in a progressive society, the prohibition against prostitution is not absolute. The State of Maryland recognizes a number of exceptions to the general rule, and defenders of the practice have attempted to test the limits of these exceptions.
In Montgomery County, Maryland, for example, "The County has long provided for a limited exception from enforcement to permit special events at which sexual contact is part of a performance," according to the Montgomery County State’s Attorney’s Office. This special event exception, however, is narrowly tailored. In order to come within the exception, the person who is otherwise subject to prosecution must have been "a principal or producing party" to an event where "the performance results in there being a critical element of the production of the performance ‘tied to a stage or a specified area’" that is "practicably distinguishable from the rest of the space in which the event is held," and where no "one person derives greater benefit than another from sexual contact."
One well-known controversy that embroiled state lawmakers for a number of years revolved around the question of whether or not prostitution should be legalized for persons age 18 or older in order to pave the way for the state to regulate the industry in much the same way it regulates bars, taverns, and other "adult venues." This idea was opposed by some state law makers and embraced by others and was eventually dismissed in 2011.
The Baltimore Sun reported in May of 2012 that "The effort to legalize a system of regulated brothels in Maryland has found little support so far." For the time being, it appears that opponents of the general prohibition against prostitution have been successful in Maryland.
As a note of final reference, it is worth mentioning that there are additional statutes at the federal level that criminalize certain conduct in connection to prostitution and related activities that take place outside of the State of Maryland and the United States of America. 18 U.S.C. 1591, for example, provides for the punishment of any person who, in or affecting interstate or foreign commerce, "knowingly…" (1) "subjects, recruits, entices, harbors, transports, provides, or obtains by any means, a person…to engage in a commercial sex act;" and even more broadly, (2) "benefits, either financially or by receiving anything of value, from" knowing conduct falling under subsection (1).
This statute is enforced vigorously by the U.S. Federal Bureau of Investigations (FBI) and in the past several years, has been used to prosecute alleged pimps and brothel-like establishments throughout the country, including here in Maryland.
Comparison with Neighboring States
The differences in state laws on prostitution charges can be significant, depending on where you are. A few states, including Maryland and Delaware, have deemed it a felony. Interstate comparisons indicate further that the limits on prostitution vary by city or county, depending on what police departments and prosecutors find acceptable.
Going North – Pennsylvania
Much like Maryland, prostitution in Pennsylvania comes with a misdemeanor charge for solicitation. A first-time prostitution offense can in some places bring an offense treated much like a first-time DUI. Yet, the more serious felonies await those who may be more dangerous to society.
Tennessee
Further down south, across the common border of Virginia and West Virginia, the comparisons get a little tighter. Tennessee is among states that treat prostitution as a Class A misdemeanor. It’s possible to face up to a year if convicted. In Tennessee, if the offense involves someone under 18, the charge escalates to a felony charge, just as it does in Maryland. Tennessee is also among the states that define aggravated prostitution as a felony , punishable by up to three years.
Virginia
One of Maryland’s closest neighbors and one that tends to draw criticism from Maryland law enforcement is Virginia. Accordingly, the prostitution laws of Virginia are much less forgiving. The minimum for solicitation is as much as six months in jail, making even a first offense against the law a real problem. Virginia is also among the states that punish repeat offenders by classifying them as a felony. Widespread solicitation, or solicitation in certain areas, will have a similar impact.
Washington D.C.
A district that has been arguing for varied laws regarding prostitution for years, the District of Columbia continues to hold prostitution in a relatively harsh light. Offering sex for money is still illegal. The fines can go as high as $1,000 and a year in jail is not unheard of. It should be noted that the District does classify people who advertise prostitution as a misdemeanor, so the charges may not be as severe as those in certain other states, but they can still carry significant penalties. Further complicating the issue, however, there are over 43,000 dedicated to sex work in the District of Columbia.