Request By:
Mr. A. Jack May, Director
Division of Legal Services
Kentucky Department of Justice
Bureau of Training
Stratton 354, E.K.U.
Richmond, Kentucky 40475
Opinion
Opinion By: Steven L. Beshear, Attorney General; James H. Barr, Assistant Attorney General
This is in response to your recent letter in which you request an opinion on the advisability of charging a potential patron of a prostitute with the offense of "criminal solicitation of prostitution" if the potential patron does the soliciting. You state that there are some police departments in Kentucky which have such a policy. They feel that if the patron actually does the soliciting, the charge is proper. You state that those police departments send out officers as "decoy" prostitutes, and if a potential patron approaches and solicits sexual conduct for a fee, the officers charge criminal solicitation of prostitution.
As you note, patronizing a prostitute is not a criminal offense. KRS 529.020, Commentary (1974); Brickey, Kentucky Criminal Law Section 25.08. In
Eisner v. Commonwealth, Ky., 375 S.W.2d 825 (1964) it was held that under KRS Chapter 529, prohibiting prostitution, a person who indulges in sexual intercourse with a prostitute does not commit prostitution, nor is he an accomplice to prostitution.
The criminal solicitation statute states as follows:
KRS 506.030(1) "A person is guilty of criminal solicitation when, with the intent of promoting or facilitating the commission of a crime, he commands or encourages another person to engage in specific conduct which would constitute that crime or an attempt to commit that crime or which would establish the other's complicity in its commission or attempted commission."
The offense of criminal solicitation does not require that the underlying offense be attempted or completed, as would be the case where the "prostitute" is actually a police decoy. It would seem that since patronizing a prostitute is not a crime, solicitation of prostitution would also not constitute a crime; however, such is not the case. This is because criminal solicitation is based on an "intent of promoting or facilitating the commission of a crime" . The "crime" referred to obviously is a crime to be committed by another person, rather than by the solicitor. In this case, the solicitor attempts to persuade another person to commit the crime of prostitution. This, rather than patronization or attempted patronization, is the essence of the offense of criminal solicitation.
The Kentucky solicitation statute is based on the corresponding section of the Model Penal Code. The Model solicitation section has been interpreted as making the solicitation to commit any offense a criminal offense itself, due to the function of the penal law in the area of inchoate crimes, such as solicitation. This function includes fulfilling the need for a legal basis (1) for permitting law enforcement agencies to intervene to prevent a crime from occurring; (2) to deal with the dangers presented by such persons as solicitors, by subjecting such persons to corrective processes; and (3) the need for achieving greater legal consistency in dealing with persons who would otherwise escape liability when their intentions are not realized. Wechsler, Jones and Korn, 61 Columbia L.R. 571 (1961) at 625.
It should be noted that while criminal facilitation, KRS 506.080, and criminal complicity, KRS 502.020 are closely related offenses, the Kentucky legislature has chosen to enact criminal solicitation by separate section. Thus, the exceptions from liability for facilitation or complicity for conduct incident to commission of the offense are not relevant to the solicitation section. See KRS 502.040, 506.100.
In conclusion, as stated at Wechsler, et al, supra, at 622, "Purposeful solicitation presents dangers calling for preventive intervention and is sufficiently indicative of disposition toward criminal activity to call for liability. The fortuity that the person solicited rejects the plan should not relieve the person of liability."