I was recently asked what the difference is between the criminal offenses of loitering prostitution and solicitation of a prostitute. Well the answer is very simple. For the most part, they are the same type of crime. Which means that in every crime there is what is called mens rea and something called actus rea. These are legal jargon terms, often preached in law school, but hardly discussed outside of law school.

The mens rea means the intention of the crime, the actus rea means the actual act. So in a solicitation and loitering case, the intent of the offense is soliciting a prostitute for a sexual act. The actus rea of ​​these cases actually means exchanging money in exchange for a sexual act.

So, if both crimes have the same mens rea and actus rea, how are they different? Well, the answer is simple. In your typical Prostitute Solicitation case, the suspect or John typically contacts a prostitute. They discuss a fee, in exchange for a sexual act. John pays the fee and the sexual act takes place. Soliciting a prostitute is a crime punishable by a jail term of more than 1 year.

In your typical Marauder Prostitution case, the same set of facts normally applies. The suspect, or John, will contact a prostitute with the intention of paying for a sexual act. However, John may not get to the point where they physically hand over money or receive the sexual act. Therefore, the loitering charge was created to prosecute people who don’t go as far as the solicitation charge. It was also created as a more ambiguous offense in that it also contains situations where John is indecisive with the prostitute.

For example, when John does not commit to a price or commits to a specific sexual act, he can be charged per loitering prostitute. Or where John is circling an area of ​​high prostitution, but doesn’t actually get involved in one. If the police can establish that John was going to solicit a prostitute, then this is a situation where he can be charged with the crime of loitering.

In my opinion, the loitering charge was created when the Prosecutor’s Office does not have sufficient solicitation evidence. Perhaps the case is a week-long trial, but there is still circumstantial evidence that John wanted to solicit a prostitute. Obviously, with this in mind, the loitering charge is more difficult for a prosecutor to prove, due to the ambiguous language of the statute.