State of the Law on Prostitution in Colorado
Prostitution in Colorado is illegal. Under Colorado Revised Statute (C.R.S.) 18-7-201(1), the charge for engaging in prostitution is officially: "a person commits prostitution if he or she engages in sexual intercourse, fellatio, cunnilingus, masturbation, or any other sexual act of contact with another person in exchange for the receipt of something of value." For most "engaging in prostitution" charges, the offense is a class 2 misdemeanor, meaning penalties may include up to a year in jail and significant fines.
Engaging in prostitution can be considered solicitation, or a form of solicitation. Solicitation, according to C.R.S. 18-3-501(1), is attempting to persuade or induce someone else to commit a crime. In the case of prostitution, for instance, attempting to solicit prostitution, or attempting to convince someone else to commit prostitution, can be charged as a class 3 misdemeanor. License suspensions or revocation may be imposed, as well, if a licensed establishment (such as a massage therapy business) is involved .
Sex trafficking may be charged in place of prostitution. The difference between the two is subtle, according to C.R.S. 18-3-501(3). In short, sex trafficking occurs when at least one of the participants is under age 18, and/or when one of the participants is forced into the exchange for survival (guerilla sex). Penalties for sex trafficking vary from a class 2 felony (for participants) to a class 3 felony (to those accused of facilitating or profiting from the exchange).
Engaging in prostitution can be charged in more than one way. C.R.S. 18-7-201(2) provides for engaging in prostitution with excuses or without excuses. Engaging in prostitution with excuses occurs when someone is coerced or persuaded into the exchange, while engaging in prostitution without excuse occurs when someone enters into the exchange consensually. A legal excuse for prostitution can include homelessness (also referred to as guerilla sex). In these cases, the "prostitutors" can be sentenced to community service rather than a year in jail.
A History of Prostitution in Colorado Law
Historically, states across the US have enacted and enforced laws prohibiting prostitution and the ownership of houses of prostitution, potentially as means to regulate commerce. In some cases, such laws were enforced with varying degrees of intensity based on perceived local morals. In Colorado, throughout the 20th century, criminal prohibitions on prostitution frequently were enacted, but rarely vigorously enforced.
In 1951, for example, officials in the town of Aurora, Colorado, sighting the extreme growth of prostitution there in the early post-World War II years, decided to forcibly evict both prostitutes and owners of brothels. They enforced the town’s laws against prostitution and prostitution-related vehicle violations, taking the novel step of offering prostitutes and owners of brothels a choice: they could leave, or they could stay and undergo mandatory rehabilitation for either alcoholism or sexual deviancy.
Enforcement efforts by municipal authorities such as those in Aurora and others elsewhere in the country nevertheless saw substantial decreases in police department expenditure on vice squads in the latter half of the century. For example, between 1949 and 1961, the number of full-time police officers working in vice units in cities such as New York, Philadelphia, and Baltimore fell from 368 to 88. Nevertheless, in Colorado, the prevalence of prostitution continued into the 1970s, with the vice squad in Denver arresting approximately 150 prostitutes each month.
The penal code revisions of 1972 hardened Colorado’s laws prohibiting prostitution. Thereafter, criminal fines were raised to $250 or six months in jail for first offenses, with second and third offenses carrying elevated penalties of three and four months in jail. The haphazard implementation of the provisions of the penal code relating to prostitution nevertheless continued and — along with courtroom rulings prohibiting the enforcement of anti-solicitation measures — contributed to the persistence of prostitution.
As the latter half of the century drew to a close, however, concerns emerged about the effects of criminal law measures on the prostitutes themselves. Such measures have minimal or no deterrent effect on the majority of individuals involved in prostitution, and many prostitutes develop significant mental health disabilities. Moreover, the harms of prostitution are frequently visited on women and men from disadvantaged socioeconomic backgrounds, particularly if the prostitution takes place in a suburban context. Thus, even in the 1990s, some police departments were enacting or reviving programs focusing on rehabilitation for prostitutes rather than simple arrests.
These developments have set the stage for what has become the current framework for prostitution enforcement in the state of Colorado — one that is defined more in terms of pursuit of therapeutic goals than punitive ones.
Penalties for the Crime of Prostitution
Upon being convicted of soliciting or engaging in prostitution under Colorado Revised Statute 18-7-201, a defendant will be charged with a Class 2 misdemeanor. This can carry a fine of between $250 and $1000 and/or a maximum jail sentence of up to 90 days in jail. If the perpetrator has been previously convicted of prostitution on two or more occasions, this crime is elevated to a Class 1 misdemeanor, which can include a fine of up to $500 and a maximum jail sentence of two years.
In Denver, a resolution adopted by the city counsel makes all violations of Denver’s prostitution laws subject to a fine of up to $500 and no more than 180 days in jail. However, the Department of Safety has reported that 2010 saw 80 of these cases being prosecuted; none were convicted. On the other hand, the Denver District Attorney reports 41 cases being filed in 2012. A Class 1 misdemeanor crime in Denver can carry a punishment of 6 to 18 months of jail time and a fine of between $500 and $5,000.
In Aurora, Colorado, solicitation of prostitution is treated as a Class 1 misdemeanor, and may carry a maximum jail sentence of up to six months and a maximum fine of up to $100. The City of Aurora also charges individuals with engaging in prostitution with a misdemeanor, but those guilty of this crime may face a maximum fine of $999 and of 364 days in jail. The Colorado Springs’ Municipal Code encompasses prostitution, solicitation and aiding the same under one provision: $500 fine or up to 90 days in prison.
Prostitution and the Colorado Criminal Justice System
Prostitution in Colorado: Navigating the Legal System
Enforcement of prostitution laws and related statutes is generally left up to local law enforcement agencies. These law enforcement agencies divide into sex crimes units or vice units to specifically investigate prostitution and other related activities. A typical sex crimes investigation doesn’t require a warrant, search or seizure. Rather, a police officer will often set up a sting operation to catch a person in the act of committing the crime. For instance, if the defense is prostitution, the alleged offense will likely be "patronizing a prostitute," which in Colorado is a class 3 misdemeanor. A police officer or detective will act like a typical "john" to apprehend the alleged violator. After a person is arrested on these charges, they will go through a standard arrest and booking process. The suspect will be fingerprinted and photographed. The person will be held until they can be released by a judge or bondsman. They may also be immediately charged with solicitation of prostitution, which is a class 3 misdemeanor, in addition to patronizing a prostitute. The suspect will then go through a judicial process to determine if they are guilty of the alleged crime. They can plead guilty to solicitation of prostitution, or be tried by a judge or jury of their peers. If convicted, the punishment could be as severe as one year in jail and a $1,000 fine. There are some defenses available to someone charged with either solicitation of prostitution or patronizing a prostitute. For example, a confession can be retracted or retracted on a serious basis, especially if it was obtained through duress.
Merits of Decriminalization or Legalization
Colorado, like many Other States, Prohibits Prostitution – but is Not Decriminalized or Yet Legalized. Conflicting Arguments Have Arisen for Both. With the prohibition on the books, there’s now the question of whether prostitution should be partially legalized or decriminalized, and there are advocates on both sides of the debate both levelling some of the same arguments as were made historically – and new ones. Lawmakers in Colorado have considered both legalization and decriminalization in the past. In 1981, legislators passed a bill that decriminalized acts of prostitution by sex workers so long as they engaged in consensual and private acts. Governor Dick Lamm vetoed the bill. In 2012, lawmakers considered another bill that would allow sex work, like escort agencies, to operate above-board and under state regulation, but they chose not to pass it. Right now, there are many advocates who believe there’s a difference between sex work that’s forced and slavery-like, and sex work where individuals have made a choice to exchange sex for money — and therefore, there’s differentiation and mitigation that can happen on a case-by-case basis. Under this concept of horizontal governance, there are people with different opinions about what sex work should and shouldn’t look like, and these individuals can negotiate the terms of sex work in their workplace however they feel comfortable. In other words, a sex worker might offer to have sex with a customer for an amount of money, and then openly discuss their services. A prostitute in the United States today cannot do this openly or without running afoul of the law, which is why authorities would prefer sex work not occur in the first place . Proponents of regulating the industry make the case that it will or may bring in tax revenue, and it will also provide better working conditions for prostitutes themselves. There are many organized groups of sex workers who believe that they simply need to regulate themselves within their own organizations and venues, with minimal outside interference. Instead, they should be allowed to unionize, offer their services in locations and environments about which they feel comfortable, and keep the government out of their business. This is the best way to mitigate sex trafficking, they argue, by giving customers and sex workers the opportunity to keep transient sex workers — or those who choose sex work to pay off other obligations — from being exploited. Proponents of legalization have argued both that it will take the power out of pimps, and that tight regulations mean safer work environments for women and men working in the industry. Further, regulation would be good because it would provide greater access to benefits, such as health care, which is routinely lacking in sex work circles. Opponents of prostitution say that legalization would make it easier to exploit workers in a more visible fashion. This increases trafficking, they add, because pimps and traffickers would no longer have to hide from the watchful eyes of law enforcement, and instead take prostitution above board. Still, critics of legalizing prostitution argue that more resources should be devoted to combating human trafficking rather than decriminalizing or legalizing prostitution, with additional workforce training targeted at high-risk individuals who may sell sex to pay for their addictions or debts; and, in doing so, reduce demand for paid sex.
Societal Impact and Perspectives on Prostitution
The societal impact of prostitution, both in Colorado and elsewhere, is multi-layered. While advocates for sex work decriminalization often argue that it provides financial stability and even empowerment for sex workers, the neighbors and communities of those individuals may have different opinions based on their perception of the dangers presented by the practice of prostitution.
– Safety
Proponents for the legalization of prostitution in Colorado often cite the potential for safety improvements for sex workers. Their argument is that if prostitutes are not forced to engage in their work under circumstances in which they will be harassed or victimized by law enforcement or clients, they will be much safer and able to protect themselves.
– Health
The connection between prostitution and certain sexually transmitted diseases (STDs) is well-established. But while Colorado now requires that prostitutes be licensed and tested for STDs, the criminalization of the practice pushes many sex workers into areas of the state in which they may not be able to access the necessary health screening to be adequately protected.
– Community Values
While sex work is legal in some parts of the country and world, in Colorado, public opinion remains largely against legalizing prostitution. Traditionally, sex work and prostitution has been viewed as contrary to American values — a sentiment that is particularly strong in the western United States. Statistics published in 2017 indicated support nationwide for the legalization of prostitution was only 37 percent. Signature sponsors of a legalization measure for Denver recently acknowledged their fight will be an uphill battle. With this in mind, sex workers may be reluctant to push for legalization of the practice due to the political ramifications that action could bring.
The Law of the Land in Colorado and Elsewhere
The issue of rights to prostitution and the sex trade are not unique to Colorado or even to the United States. Like other laws, prostitution laws vary by state, and indeed by country. In this section I will provide brief comparative notes on prostitution law in other states to highlight the varied approaches taken.
By the most recent counts, only Nevada and New Mexico have legalized prostitution with a license and a tax structure, yet many cities and counties in the more liberal state of California allow or at least look the other way at prostitution. Illinois still has on the books its law that anyone who directly or indirectly leases a house for "illicit sexual intercourse" or "other licentious act" may be found guilty of a misdemeanor or a felony, but some cities like San Francisco and Eugene, Oregon decriminalize all prostitution.
In Utah the law states that it is "a crime for any person knowingly and intentionally to accept , receive or agree to receive any money or property of another in exchange for an act or performance that constitutes prostitution or an offer or agreement to engage in prostitution." Yet Utah has become home to some of the largest legal brothels in the world. Even with 13 separate state-run "residences," three are located in nonconforming zones, and two are not inspected properly.
While neighboring Wyoming and New Mexico contain laws that refer to ‘outrages against decency’ with a maximum penalty of 90 days in jail, Colorado regulations are much more explicit. We previously wrote about how prostitution is defined in Colorado, where any type of sexual activity that a person engages in for private compensation would qualify. In our next section, I will turn my attention to Colorado laws and community standards around prostitution.