A person, 18 years of age or older, commits the offense of prostitution when he or she performs or offers or consents to perform a sexual act, including, but not limited to, sexual intercourse or sodomy, for money or other items of value.
(Code 1933, § 26-2012, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 2001, p. 92, § 3; Ga. L. 2019, p. 74, § 1-6/SB 158.)
The 2019 amendment, effective July 1, 2019, inserted ", 18 years of age or older," near the beginning and substituted "including, but not limited to," for "including but not limited to" near the end. See Editor's note for applicability.
Cross references.- Affirmative defense to certain sexual crimes, § 16-3-6.
Abatement of houses of prostitution, T. 41, C. 3.
Editor's notes.- Ga. L. 2001, p. 92, §§ 1 and 2, not codified by the General Assembly, provide: "This Act shall be known and may be cited as the 'Child Sexual Commerce Prevention Act of 2001.' The General Assembly acknowledges that children are increasingly induced, coerced, or compelled to perform sexual acts for the financial benefit of third parties. The General Assembly enacts this law to express its abhorrence for these practices and to better protect children from sexual exploitation."
Ga. L. 2019, p. 74, § 1-1/SB 158, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Anti-Human Trafficking Protective Response Act.'"
Ga. L. 2019, p. 74, § 3-1/SB 158, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 2019, and shall apply to offenses which occur on or after that date. Any offense occurring before July 1, 2019, shall be governed by the statute in effect at the time of such offense, and any resulting conviction shall be considered a prior conviction for the purpose of imposing a sentence that provides for a different penalty for a subsequent conviction."
Law reviews.- For article, "Misdemeanor Sentencing in Georgia," see 7 Ga. St. B. J. 8 (2001). For article on the 2019 amendment of this Code section, see 36 Ga. St. U.L. Rev. 63 (2019). For note on the 2001 amendment to O.C.G.A. § 16-6-9, see 18 Ga. St. U. L. Rev. 32 (2001).
JUDICIAL DECISIONS
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under Ga. L. 1943, p. 568 (see now O.C.G.A. § 44-7-18) are included in the annotations for this Code section.
Equal protection.
- Application of section in Atlanta held not to deny equal protection to female prostitutes. State v. Gaither, 236 Ga. 497, 224 S.E.2d 378 (1976).
Former Code 1933, § 26-2012 (see now O.C.G.A. § 16-6-9) was not void for vagueness. Moore v. State, 231 Ga. 218, 201 S.E.2d 146 (1973).
Former Code 1933, § 26-2012 (see now O.C.G.A. § 16-6-9) was applicable only to "sellers" of sexual intercourse for money. State v. Gaither, 236 Ga. 497, 224 S.E.2d 378 (1976).
Former Code 1933, § 26-2012 (see now O.C.G.A. § 16-6-9) did not provide that person had to accept money in order to commit offense, but that the proposed act of sexual intercourse be for a consideration of money. Moore v. State, 231 Ga. 218, 201 S.E.2d 146 (1973).
Acceptance of money and consummation of transaction not required.
- Person does not have to accept money to commit the offense of prostitution, nor does a person have to actually consummate the transaction; rather, to commit the crime the person need only offer to perform an act of sexual intercourse for money. Allen v. State, 170 Ga. App. 96, 316 S.E.2d 500 (1984).
Offense is defined in terms of commercialization: the sale, offer to sell or consent to sell physical intimacies for money. State v. Gaither, 236 Ga. 497, 224 S.E.2d 378 (1976).
When female becomes a prostitute.
- Female becomes a prostitute once she has performed, offered, or consented to perform first act of sexual intercourse for money. Fluker v. State, 248 Ga. 290, 282 S.E.2d 112 (1981), appeal dismissed, 455 U.S. 1009, 102 S. Ct. 1699, 72 L. Ed. 2d 127 (1982).
Indiscriminate illegal intercourse with number of men not necessarily involved.
- "Prostitution" as used in statute relating to solicitation of another for the purpose of prostitution does not necessarily involve indiscriminate illegal intercourse with a number of men. Price v. State, 76 Ga. App. 108, 45 S.E.2d 84 (1947) (decided under Ga. L. 1943, p. 568).
Definition of "sexual intercourse."
- Since "sexual intercourse" is a necessary element of both adultery and prostitution, it is logical to conclude that the definition of sexual intercourse should be uniform in both instances. Allen v. State, 170 Ga. App. 96, 316 S.E.2d 500 (1984).
Type of sexual intercourse need not be specified in an accusation for the offense of prostitution. State v. Kenney, 233 Ga. App. 298, 503 S.E.2d 585 (1998).
Solicitation of carnal intercourse in unnatural way.
- Term "prostitution" as defined by the General Assembly does not mean solely sexual intercourse in the natural way, but includes solicitation of carnal intercourse in an unnatural way. Price v. State, 76 Ga. App. 108, 45 S.E.2d 84 (1947) (decided under Ga. L. 1943, p. 568).
Homosexual acts.
- Person may commit the crime of prostitution by offering to engage in homosexual acts for money. Allen v. State, 170 Ga. App. 96, 316 S.E.2d 500 (1984).
Consensual sodomy has been merged into the offenses of fornication and adultery. Allen v. State, 170 Ga. App. 96, 316 S.E.2d 500 (1984).
Former Code 1933, § 26-2012 (see now O.C.G.A. § 16-6-9) did not require state to allege or prove exact amount of money; statute required only that the defendant perform or offer to perform sexual intercourse for money. Anderson v. State, 149 Ga. App. 460, 254 S.E.2d 459 (1979).
Specifying who made the offer to perform sexual intercourse is not required in an accusation for the offense of prostitution. State v. Kenney, 233 Ga. App. 298, 503 S.E.2d 585 (1998).
Former Code 1933, § 26-2012 (see now O.C.G.A. § 16-6-9) may be upheld as one to punish for attempt to commit prostitution. Moore v. State, 231 Ga. 218, 201 S.E.2d 146 (1973).
Conviction for committing or agreeing to commit prostitution.
- Person may be convicted under former Code 1933, § 26-2012 (see now O.C.G.A. § 16-6-9) not only if the person actually committed the act of prostitution but also if the person was a party to an agreement to do so. There is no constitutional prohibition against this feature. Moore v. State, 231 Ga. 218, 201 S.E.2d 146 (1973).
When allegation may be disregarded because surplusage.
- When the accusation stated that the accused "did then and there unlawfully, and with force and arms, offer and consent to perform an act of sexual intercourse for money," since "with force and arms" was not part of former Code 1933, § 26-2012 (see O.C.G.A. § 16-6-9) which makes prostitution a crime and the words are not required in the form prescribed for indictments under former Code 1933, § 27-501 (see O.C.G.A. § 17-7-54), such an allegation is mere surplusage and may be disregarded. Anderson v. State, 149 Ga. App. 460, 254 S.E.2d 459 (1979); Hicks v. State, 149 Ga. App. 459, 254 S.E.2d 461 (1979).
Name of particular individual solicited for prostitution is not required in order to set forth one of the essential elements of the crime, and any variation in the proof of whom was solicited was immaterial. Shorter v. State, 155 Ga. App. 609, 271 S.E.2d 741 (1980).
Failure to name the person solicited was not a ground for sustaining a demurrer to the indictment. State v. Kenney, 233 Ga. App. 298, 503 S.E.2d 585 (1998).
Sufficient evidence to support guilty verdict.
- In a prostitution prosecution where the arresting police officer testified that the officer began a conversation with the defendant and that during this conversation defendant offered to have sexual intercourse with the officer for $100.00, but the defendant denied having offered to perform sexual intercourse with the arresting officer for any money and presented evidence that defendant was incapable of having sexual intercourse at that time due to complications from recent surgery, the evidence was sufficient to support the jury verdict of guilty. Lemon v. State, 151 Ga. App. 709, 261 S.E.2d 447 (1979).
Given the statements made by a codefendant that the codefendant would have sex with an undercover police detective "as well," and evidence that the defendant accepted $150 after representing that the money constituted payment for straight sex and oral sex, the defendant's conviction for prostitution was upheld on appeal. Ford v. State, 285 Ga. App. 106, 645 S.E.2d 590 (2007).
Evidence supported defendant's conviction for attempted prostitution, after the record showed that she worked for "escort services" listed under "massage parlors" in the telephone directory and a witness testified "the lady put a condom on me and put her mouth on my penis" while charging him about $300 therefor. Renz v. State, 183 Ga. App. 108, 357 S.E.2d 843 (1987).
When female disrobes and reclines on bed together with nude male, the reasonable expectation is that the ordinary and normal form of sexual intercourse is intended by the parties. Bailess v. State, 168 Ga. App. 56, 308 S.E.2d 61 (1983).
Cited in Snead v. State, 127 Ga. App. 12, 192 S.E.2d 415 (1972); Hicks v. State, 234 Ga. 142, 214 S.E.2d 658 (1975); Pace v. City of Atlanta, 135 Ga. App. 399, 218 S.E.2d 128 (1975); Lambert v. City of Atlanta, 242 Ga. 645, 250 S.E.2d 456 (1978); McGee v. State, 165 Ga. App. 423, 299 S.E.2d 573 (1983); Berman v. State, 191 Ga. App. 231, 381 S.E.2d 316 (1989); Pardue v. State, 214 Ga. App. 690, 448 S.E.2d 768 (1994); Wills v. State, 216 Ga. App. 157, 453 S.E.2d 762 (1995); Pabey v. State, 262 Ga. App. 272, 585 S.E.2d 200 (2003).
OPINIONS OF THE ATTORNEY GENERALConfidential screening for the HTLV-III/LAV virus in convicted prostitutes may be required: (1) as a health measure by the Department of Human Resources, or (2) as a condition of probation by the sentencing court. 1986 Op. Att'y Gen. No. 86-19.
RESEARCH REFERENCES
Am. Jur. 2d.
- 63C Am. Jur. 2d, Prostitution, § 1 et seq.
C.J.S.- 73 C.J.S., Prostitution and Related Offenses, § 1 et seq.
ALR.
- Power to exact license fees or impose a penalty for benefit of private individual or corporation, 13 A.L.R. 828; 19 A.L.R. 205.
Purpose other than indulgence in sexual intercourse as affecting violation of Mann Act, 73 A.L.R. 873.
White Slave Traffic Act (Mann Act) as affecting constitutionality or application of state statutes dealing with prostitution, 161 A.L.R. 356.
What constitutes such discriminatory prosecution or enforcement of laws as to provide valid defense in state criminal proceedings, 95 A.L.R.3d 280.
Laws prohibiting or regulating "escort services," "outcall entertainment," or similar services used to carry on prostitution, 15 A.L.R.5th 900.