Prostitution Laws and Sentencing in Illinois

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Prostitution Law and Sentencing in Illinois

(Updated August 31, 2015)

This document is intended for guidance only and is not a substitute for professional legal advice. If you have any questions or need legal advice, please contact an attorney at the SWOP-Chicago legal clinic. See information on how to do so at the bottom of the page.

In Chicago, there are generally two laws individuals can be arrested for while working in the sex trade:

720 ILCS 5/11-14: Prostitution: Any person who knowingly performs, offers or agrees to perform any act of sexual penetration* (of the mouth, hands, or anus, however slight) or any touching or fondling of the sex organs of one person by another person for the purpose of sexual arousal or gratification for any thing of value commits an act of prostitution.

Class A Misdemeanor:

• punishable by up to a year in prison.
• and/or up to $2500 in fines.
• If you used a car to get to the site you were arrested at, you are in Chicago, and law enforcement officials know you have a car, it will be impounded (for a $2000.00 fee, or a $3000.00 fee if the arrest takes place within 500 feet of a school).

8-80-060: Street Solicitation for Prostitution (CHICAGO ONLY): Any person who remains or wanders about in a public place and repeatedly beckons to, or repeatedly stops, or repeatedly attempts to stop, or repeatedly attempts to engage passersby in conversation, or repeatedly stops or attempts to stop motor vehicles, or repeatedly interferes with the free passage of other persons, for the purpose of pandering, prostitution, or solicitation shall be guilty of a violation of this section.

Any Offense: Violation of a Chicago City Ordinance

• If you used a car to get to the site you were arrested at and law enforcement officials know this, it will be impounded (for a $2000.00 fee, or a $3000.00 fee if the arrest takes place within 500 feet of a school).
• and fine between $750.00 and $1,500.00 or imprisonment for between 20 days and six months.
• and/or 100 hours of community service/a diversion program.
• The superintendent of police shall make available to local newspapers, radio and television stations the names of all persons charged with violating this subsection.

*Penetration means any contact, however slight, between the sex organ or anus of one person and an object or the sex organ, mouth, or anus of another person, or any intrusion, however slight, of any part of the body of one person or of any animal or object into the sex organ or anus of another person, including, but not limited to, cunnilingus, fellatio, or anal penetration. Evidence of emission of semen is not required to prove sexual penetration.

 

All prostitution arrests made in Illinois can be expunged or sealed from your criminal record, including cases that result in Class-4 Prostitution felony convictions [Prior to August, 2013, individuals with prior prostitution convictions could be charged with a Class-4 felony. This ‘felony upgrade’ is no longer active]. See Expungement and Sealing section below for information on how to do so.

What Happens If You Are Arrested?

If you are arrested, you will be brought to a police station, fingerprinted, have your mug-shot taken and maybe held overnight. Then you will be brought to the court holding cell, where you will wait for your turn before the judge. This is called an “arraignment.” The judge should ask you if you need a translator.

A public defender is assigned to each courtroom, and you have the right to speak with an attorney prior to sentencing. Public defenders can provide general information regarding the court process, but they cannot discuss the specifics of any given case until they are appointed. An attorney will not have access to the evidence law enforcement officials collected against the defendant unless the defendant chooses to take the case to trial (a second court hearing following the initial arraignment). Individuals are only entitled to the assistance of a public defender if they are being charged by the state’s attorney (prosecution) with a misdemeanor or felony offense. Most individuals charged with prostitution do not choose to take their case to beyond the initial arraignment; most prostitution cases are settled at the initial arraignment, where defendants are offered deferred prosecution or supervision (see below). We recommend you speak with an attorney prior to agreeing to a sentencing arrangement.

What are Common Penalties for Individuals Charged with Prostitution?

If your case does not result in an acquittal (not-guilty-finding), FNCP (Finding of No Probable Cause for Arrest), or dismissal (charges are not filed), you will most likely be sentenced in one of the four following ways:

1. Deferred Prosecution (first offense): On a first offense, if you have a good record and no other charges are filed against you at the time you are arrested for prostitution, you will likely be offered ‘deferred prosecution’ by the prosecutor. In a deferred prosecution, the legal proceedings of a criminal case are put off for a period of time and subject to certain conditions. If conditions are met, the charges are completely dropped, the case is dismissed, and the individual does not have a guilty plea on his/her court record. For prostitution cases, the typical condition is that the defendant participate in a brief diversion program (Footprints or the Misdemeanor Deferred Prosecution Program) and/or complete community service. The defendant must also not be charged or convicted of other crimes prior to completing the course/community service requirements. Once the course/community service requirements is/are completed, charges are dismissed. No plea of guilty or judgment of conviction is entered, and the individual can file to expunge his/her record immediately after demonstrating fulfillment of the conditions of deferred prosecution. If the defendant doesn’t comply with the conditions of the deferred prosecution, the prosecution of the case continues and the defendant can either plead guilty or go to trial.
2. Supervision (first or second arrest): A court order holding the case open for a specific period of time, usually between six months and two years. During that time, no judgment of guilt is entered. If all the conditions of supervision are followed, the case is dismissed and no conviction is ever entered against the defendant. Unlike with deferred prosecution (where no court charges are filed and the individual can immediately clear his/her record), an individual that accepts court supervision must wait two years after successfully completing the supervision before expunging his/her record.

3.) Misdemeanor conviction (almost always after the second or third arrest) – Prostitution is considered a class A misdemeanor, and the defendant may be sentenced to up to one year in prison. Typically, alternative sentencing arrangements are made, including but not limited to:

• TCS (Time considered served – you are not required to spend any time in jail beyond the time you have already spent in jail since you were arrested; TCS still counts as a conviction on your record.)
• Diversion Program – Footprints and the Misdemeanor Deferred Prosecution Program both offer more intensive diversion programs that individuals charged with prostitution misdemeanors can participate in in lieu of prison time at the discretion of the prosecution and presiding justice. Individuals with a prostitution misdemeanor charge can seal their criminal record four years after completing their court supervision for a prostitution misdemeanor charge.

4.) Felony conviction [NO LONGER A SENTENCING OPTION – This is a reference for individuals who received a felony charge for prostitution BEFORE 8/23/2013]. 

An individual may seal his/her record for a felony prostitution conviction if he/she:

• Has never been convicted of other criminal charges.
• Has no pending criminal charges.
• Four years have passed since the end of his last sentence for any other criminal offense (including another sentence of court supervision).

If he/she was also placed on Section 10 (“710″), Section 410 (“1410″), or Section 70 probation (“First Offender” drug probation) or 40-10 probation (“TASC” probation) for another offense, he/she may seal his/her criminal record five years after that probation ends.

If he/she was placed on “TASC” probation (this is a type of probation for men and women whose alcohol and drug problems have contributed to their involvement in nonviolent crimes) as part of a felony prostitution sentence, he/she can expunge his/her criminal record five years after probation has ended.

Expunging and Sealing Criminal Records

Depending on the petitioner’s criminal record, a petitioner may expunge or seal the record of their arrest after the case is resolved in court. Expungement is a process in which a petitioner clears their entire arrest record at once. When a petitioner expunges their record, the records are physically destroyed or returned to the petitioner, and the petitioner’s name is removed from any official index or public record. Sealing is a process in which a petitioner clears the record of an individual arrest. When records are sealed, they remain physically and electronically maintained. However, they are unavailable to the public without a court order. Law enforcement agencies and the courts still have access to these records, as will a few employers and other entities as allowed by law.

To be eligible for expungement, a petitioner must have no convictions in their criminal record. A conviction is a final judgment of guilt by the court. Petitioners may obtain their RAP sheet from the police department to determine whether or not they have any convictions. If the petitioner’s record indicates that the disposition of any of the petitioner’s cases resulted in Probation (except “710,” “1410,” “Section 10,” “Section 410,” “40-10,” or “TASC” probation), Conditional Discharge, Fine (without the term “supervision”), Time Served, Jail Time, Finding of Guilty by a judge or jury (without the term “supervision”), PG /FG (pleaded guilty/found guilty), then the petitioner is not eligible for expungement.

However, If the final disposition on ALL of the petitioner’s criminal cases include the terms: Acquittal (Finding of Not Guilty); SOL (Stricken with Leave); FNPC (Finding of No Probable Cause); NP (Nolle Prosequi); No charges filed; Dismissal; Successfully completed supervision; Successfully completed Section 10,410 (710 or 1410), 70 or TASC Probation –then you have no convictions on your record. You may expunge your criminal record.

A petitioner may expunge their criminal record immediately so long as none of their dispositions resulted in Successfully Completed Supervision. If one or more of their dispositions resulted in Successfully Completed Supervision, then the petitioner must wait two years from the date that the petitioner successfully completed their most recent order of supervision.

If a petitioner has a conviction in their background, the petitioner may still seal any offense that did not result in a conviction. A petitioner may seal the record of any arrest that did not result in a conviction immediately so long as disposition is not Successfully Completed Supervision. If the disposition of the case is Successfully Completed Supervision, then the petitioner must wait three years from the date that the petitioner successfully completed their supervision. If the petitioner received supervision on a prostitution charge, they may not seal their record until four years after the date that the petitioner successfully completed their supervision.

This guide, published by the Office of the State Appellate Defender (Jan 2012) provides additional information on conditions for expunging and/or sealing criminal records and a step-by-step guide in how to file. It is particularly useful for individuals with other arrests and/or convictions on their record.

Third-Party Related Offenses

Advancing Prostitution (Soliciting another for the purpose of prostitution, arranging a meeting for the purposes of prostitution, directing another for the purpose of prostitution, or keeping a place of prostitution) = Class 4 felony – 1-3 years in jail and/or fines up to $25,000. Not sealable/expungable without a formal pardon.

Advancing Juvenile Prostitution = Class 1 Felony – 4-15 years in jail and/or fines up to $25,000. Not sealable/expungable without a formal pardon (If juvenile under 13 = Class X felony – 6-30 years in jail and/or fines up to $25,000. Not sealable/expungable without a formal pardon).

Victims of Human Trafficking

Illinois Safe Children’s Act (effective August 10, 2012): Individuals under the age of 18 can no longer be charged with prostitution. Prostitution convictions given to a minor prior to August 10, 2012 can now be vacated.

Illinois Statute (725 ILCS 5/116-2.1) Sec. 116-2.1. Motion to vacate prostitution convictions for sex trafficking victims: Trafficking Victims under Section 10-9 (involuntary servitude, involuntary sexual servitude of a minor, or trafficking in persons for forced labor or services) of the Criminal Code of 1961; or a victim of a severe form of trafficking under the federal Trafficking Victims Protection Act (22 U.S.C. Section 7102(13)) can file to vacate prostitution convictions given as minors, or where an argument can be made that deception, force, threats of violence or coercion led to involvement in the sex trade, and thus the conviction.

Individuals who meet these criterion can motion to vacate convictions at ANY time, regardless of how long has passed since the convictions were given.

The SWOP-Chicago Legal Clinic

For legal advice relating to criminal defense, expunging or sealing your criminal records, or vacating prostitution convictions, please follow up with the SWOP-Chicago Activism Law Clinic by filling out the online screening intake below. A representative from SWOP-Chicago will contact you shortly and put you in contact with an attorney from the legal clinic.

http://www.calachicago.org/swop-clinic-online-screening