Consequences & Stakes: Understanding Virginia Code § 18.2-346

The core of Virginia’s prostitution law is found in Virginia Code § 18.2-346, which defines the offense and outlines the penalties. A first-time conviction for prostitution or solicitation is a Class 1 misdemeanor, the most serious class of misdemeanor in the Commonwealth. This carries a potential sentence of up to 12 months in jail, a fine of up to $2,500, or both. Beyond these immediate penalties, a conviction creates a permanent criminal record that is publicly accessible.

In my years of practice, clients are often most surprised by the severity of these “collateral consequences.” The direct penalties—jail time and fines—are daunting enough. However, the long-term ramifications can be far more destructive. A prostitution conviction is not eligible for expungement in Virginia if you are found guilty. This means it will appear on background checks for the rest of your life, potentially affecting:

• Current and Future Employment: Many employers have policies against hiring individuals with certain criminal convictions, particularly for roles requiring a high level of trust or a professional license.
• Professional Licensing: Individuals in fields such as healthcare, education, law, or finance may face disciplinary action from their licensing boards, including suspension or revocation of their license to practice.
• Immigration Status: For non-U.S. citizens, a prostitution conviction can be considered a “crime involving moral turpitude” (CIMT). This can lead to deportation, denial of a green card application, or refusal of re-entry into the United States.
• Security Clearances: A conviction will almost certainly jeopardize an individual’s ability to obtain or maintain a government security clearance, a critical requirement for many jobs in Northern Virginia.
• Personal Reputation: The stigma associated with a sex-related crime can cause profound damage to personal relationships and community standing.

It’s also crucial to understand what the statute specifically prohibits. Virginia Code § 18.2-346 makes it illegal for any person to:

1. Commit prostitution or receive money in return for a sexual act.
2. Offer to commit prostitution.
3. Solicit, or pay for, a sexual act from another person.
4. Enter or remain in a “bawdy place” for the purposes of prostitution.

The law is intentionally broad, criminalizing the actions of both the person selling and the person buying sexual services. This is why so many arrests stem from sting operations where undercover officers pose as either a prostitute or a “john.” The Commonwealth’s Attorney only needs to prove that there was an agreement for a sexual act in exchange for money; the act itself does not need to have occurred.

Furthermore, related statutes can lead to more serious charges. For example, **Virginia Code § 18.2-347**, which concerns “keeping, residing in or frequenting a bawdy place,” is also a Class 1 misdemeanor. If the circumstances involve a minor or elements of coercion, the charges can escalate to felonies with devastating consequences. The stakes are incredibly high, which is why a passive approach is never an option.

The Legal Process for a Prostitution Charge in Virginia

Navigating the Virginia court system for a prostitution charge involves a distinct sequence of events, primarily handled by local police, the Commonwealth’s Attorney, and the General District Court. The process begins with an arrest and concludes with a trial or plea agreement. Understanding this progression is vital, as actions taken at each stage can significantly influence the final outcome. Your case will almost always start in the General District Court of the county or city where the alleged offense occurred.

Having guided hundreds of clients through this very process, I can map out the typical journey. While each case has its unique facts, the procedural framework remains consistent.

Step 1: The Arrest or Summons

Most prostitution cases begin in one of two ways: an on-the-spot arrest during a sting operation or the later issuance of a summons or warrant. In sting operations, which are very common, law enforcement officers from **local police departments** (like Fairfax County or Prince William County police) will pose as prostitutes or customers online or in person. Once an agreement for a sexual act in exchange for money is made (often through text messages or recorded conversations), an arrest is executed. You will be taken into custody, processed, and typically brought before a magistrate who will set the terms of your release, which may or may not include a bond.

Step 2: The Arraignment

Your first court appearance is the arraignment, which takes place in the **Virginia General District Court**. This is a brief hearing where the judge formally reads the charge against you, informs you of your right to an attorney, and asks you to enter a plea (guilty, not guilty, or no contest). It is almost always advisable to plead “not guilty” at this stage to preserve all your legal options. This is not the time to explain your side of the story. The only objective is to set a trial date and secure legal representation if you have not already done so.

Step 3: The Pre-Trial Phase

This is the most critical phase for building a defense. During this time, your attorney will file a request for “discovery” with the **Commonwealth’s Attorney’s Office**. The Commonwealth’s Attorney is the prosecutor who represents the state. The discovery package contains the evidence the prosecution has against you, which may include:

• The police report
• Body camera or other video footage
• Audio recordings of conversations
• Transcripts of text messages or online chats
• The names of their witnesses (usually the arresting officers)

This is where seasoned legal counsel is indispensable. We meticulously review every piece of evidence to identify weaknesses in the prosecutor’s case, potential constitutional violations (like illegal search or seizure), or evidence of entrapment.

Step 4: The Trial

Your trial will also occur in the General District Court. In this court, there is no jury; the case is heard and decided by a single judge. The Commonwealth’s Attorney will present their evidence and call witnesses. Your attorney will have the opportunity to cross-examine those witnesses, object to improper evidence, and present your defense. You have the right to testify, but the decision of whether to do so is a strategic one made with your counsel. After hearing all the evidence, the judge will render a verdict of guilty or not guilty.

Step 5: Appeal to the Circuit Court (If Necessary)

If you are found guilty in the General District Court, you have an absolute right to appeal the decision to the **Virginia Circuit Court**. An appeal is essentially a do-over. You get a brand new trial (a “trial de novo”). In the Circuit Court, you have the right to a trial by jury. This is a powerful tool, as it gives you a second chance to fight the charge before a different fact-finder, and sometimes the prospect of a full jury trial can lead to more favorable negotiations with the prosecutor.

The SRIS Prostitution Charge Response Blueprint

When you are first charged, the situation can feel chaotic and overwhelming. To counter this, a structured, methodical approach is essential. This is not the time for panic, but for deliberate action. Over my career, I’ve developed a clear framework to help clients regain control and position themselves for the best possible defense. We call it “The SRIS Prostitution Charge Response Blueprint.” It is a practical guide for the first 72 hours after being charged.

Step 1: Exercise Your Right to Remain Silent

Action: Do not discuss the details of the incident with anyone—not police, not friends, not family. Anything you say can be used against you.

Why it’s critical: Police are trained to elicit incriminating statements. Even trying to “explain” your side of the story can provide the prosecutor with elements they need to prove their case. The only person you should discuss the facts with is your attorney.

Step 2: Document Your Recollection Immediately

Action: On your own, write down every single detail you can remember about the event.

Why it’s critical: Memory fades quickly. Capture specifics: what was said, who said it, the sequence of events, the location, the demeanor of the officers. Was the officer overly persistent? Did you feel pressured? These details are invaluable for identifying potential defenses like entrapment.

Step 3: Preserve All Digital Evidence

Action: Do not delete anything from your phone or computer. Take screenshots of online ads, text message exchanges, and call logs.

Why it’s critical: The prosecution will have their version of your digital communications. It is vital to have your own complete, unaltered record. Deleting messages can be viewed as destruction of evidence (“spoliation”) and can severely harm your case. This evidence might contain the very context that proves your innocence or shows police misconduct.

Step 4: Identify and List Potential Witnesses

Action: Think about anyone who might have knowledge relevant to your case. This could be someone who knows about the online platform you used, or someone who can attest to your character.

Why it’s critical: While many prostitution cases have no third-party witnesses to the actual alleged solicitation, character witnesses can be important for sentencing or negotiations. Your attorney will determine if and when it is appropriate to use them.

Step 5: Secure Knowledgeable Legal Counsel

Action: Engage a law firm with deep experience in handling Virginia prostitution and solicitation charges.

Why it’s critical: This is not a charge to handle on your own or with an attorney who only dabbles in criminal defense. An experienced lawyer understands the local courts, the prosecutors, and the specific tactics used in sting operations. They can immediately begin protecting your rights and analyzing the evidence for weaknesses, setting the stage for a strong defense long before you step into a courtroom.

Strategic Approaches & Potential Defenses

A successful defense against a Virginia prostitution charge is not about creating a story; it is about systematically dismantling the prosecution’s case. Every case rests on the Commonwealth’s ability to prove, beyond a reasonable doubt, that you had the specific intent to exchange a sexual act for money. Our strategic focus is on challenging that proof, scrutinizing police procedure, and presenting a compelling counter-narrative to the court.

In two decades of defending these cases, I’ve found that the most effective strategies are grounded in the facts and the law. Here are some of the primary avenues we explore when building a defense:

Challenging the “Agreement”

The cornerstone of a prostitution or solicitation case is the agreement. The prosecutor must prove there was a clear, unambiguous meeting of the minds to exchange a specific sexual act for a specific amount of money. Often, conversations, especially those captured via text or online chat, are vague or equivocal. We analyze the language used:

• Was money ever explicitly mentioned in exchange for a sexual act?
• Was the conversation full of slang or innuendo that could be interpreted in multiple ways?
• Did you ever actually agree, or were you simply continuing a conversation without committing to an illegal act?

If the evidence of an agreement is weak, we can argue that the Commonwealth has failed to meet its burden of proof.

The Entrapment Defense

Entrapment is a very specific and often misunderstood defense. It doesn’t just mean that an undercover officer provided the opportunity to commit a crime. To prove entrapment in Virginia, we must show two things: (1) the idea for the crime originated with the police, not you, and (2) you were not otherwise predisposed to commit such a crime. We look for evidence of improper police conduct:

• Did the undercover officer have to ask you repeatedly?
• Did they use undue persuasion, pressure, or threats?
• Did they appeal to your sympathy or suggest the act was for a reason other than pure commercial sex?

While difficult to prove, a well-documented case of police overreach can be a powerful defense.

Lack of Specific Intent (Mens Rea)

Criminal law requires a “guilty mind,” or mens rea. The prosecutor must prove you specifically intended to commit the crime of prostitution. Perhaps you thought you were arranging a legitimate date. Perhaps you were simply exploring a fantasy online with no intention of ever meeting in person or exchanging money. If your intent was not to engage in commercial sex, you have not committed the crime. This defense hinges on your credibility and the context of the entire interaction.

Negotiation and Alternative Dispositions

Sometimes, the most strategic approach is not to go to trial but to negotiate with the prosecutor for a favorable outcome. For a first-time offender with a clean record, a knowledgeable attorney can often negotiate to have the charge amended or reduced to a lesser offense that is not a sex crime, such as “disorderly conduct.” In some jurisdictions, it may be possible to have the charge dismissed entirely upon the completion of certain conditions, such as community service or an educational course. This strategy protects your criminal record, which is often the most important long-term goal.

Common Mistakes to Avoid After a Prostitution Arrest

The actions you take immediately following an arrest can have a profound impact on the outcome of your case. In my experience, many individuals inadvertently harm their own defense out of fear, embarrassment, or a simple lack of information. Avoiding these common pitfalls is crucial.

1. Talking to the Police: This is the most common and damaging mistake. You have a constitutional right to remain silent. Use it. Police are not trying to help you or “hear your side.” They are gathering evidence to be used against you by the Commonwealth’s Attorney. Anything you say can and will be twisted to fit their narrative. Politely state, “I wish to remain silent and I would like to speak with an attorney.”
2. Deleting Evidence from Your Phone: In a moment of panic, the impulse to delete text messages, call logs, or online ads is strong. Do not do it. This act can be charged as obstruction of justice. Furthermore, that evidence may contain information that is helpful to your defense, such as proof of entrapment or ambiguity in the conversation.
3. Failing to Take the Charge Seriously: Some people believe a misdemeanor is “not a big deal.” In Virginia, a Class 1 misdemeanor is very serious, and a prostitution conviction is uniquely damaging due to its permanent nature and the associated stigma. It requires a robust and immediate defense.
4. Missing Your Court Date: Failing to appear for your arraignment or trial date will result in the judge issuing a “capias,” which is a bench warrant for your arrest. This complicates your case immensely and signals to the court that you are not taking the matter seriously.
5. Trying to Contact the Other Party: If you were arrested as part of a sting, the “other party” is an undercover police officer. Any attempt to contact them will be seen as witness tampering or further solicitation. If you were arrested with another civilian, do not contact them as it can harm both of your cases.
6. Waiting Too Long to Hire an Attorney: The time between your arrest and your first court date is a critical window for building a defense. An attorney needs time to request evidence, analyze the case, and begin negotiations with the prosecutor. Waiting until the day before court hamstrings your ability to mount an effective defense.

Glossary of Key Legal Terms

Prostitution

As defined in Virginia Code § 18.2-346, the act of performing, offering to perform, or agreeing to perform a sexual act for money or its equivalent.

Solicitation

The act of offering money or its equivalent to another person with the intent to engage them in a sexual act. In Virginia, this is prosecuted under the same statute as prostitution.

Bawdy Place

A legal term defined in Virginia Code § 18.2-347 for any place, such as a house, hotel room, or other building, that is used for the purpose of prostitution or illicit sexual intercourse. Frequenting such a place is a separate crime.

Commonwealth’s Attorney

The elected prosecutor in each Virginia county or city who is responsible for prosecuting criminal cases on behalf of the Commonwealth of Virginia.

General District Court

The court in Virginia where all misdemeanor cases, including first-offense prostitution charges, are initially heard. Trials in this court are decided by a judge, not a jury.

Circuit Court

The higher-level trial court in Virginia. A defendant convicted in General District Court has an automatic right to appeal for a new trial (a “trial de novo”) in Circuit Court, where they can request a jury.

Entrapment

A legal defense where a defendant argues they were induced by law enforcement to commit a crime they otherwise would not have committed. This is an affirmative defense and can be difficult to prove.

Common Scenarios & Questions

These charges arise from a variety of situations. Here are a few common scenarios I have encountered in my practice that reflect the questions people frequently have.

Scenario 1: The Online Ad Sting

“I responded to an ad on a website and exchanged some texts with a person. We discussed a price and a hotel location. When I arrived at the hotel room, the police were there and arrested me. I never touched anyone or even saw the person from the ad. Can I still be convicted?”

Perspective: Yes, you can be convicted. Under Virginia Code § 18.2-346, the crime is complete the moment the agreement is made. The prosecution does not need to prove that any sexual act occurred or that any money changed hands. Their case will rely on the text messages or recorded phone calls that establish the agreement. The defense in this situation would focus on scrutinizing the exact language of those communications. Was the agreement clear and unequivocal? Was there any evidence of police entrapment or pressure in the conversation?

Scenario 2: The “Just Talking” Defense

“I was on a dating app and the conversation turned sexual. The other person brought up money as a ‘gift’ for their time. I was curious and played along, but I never intended to actually go through with it or pay anyone. Now I’m charged with solicitation. How can they prove my intent?”

Perspective: Proving your internal state of mind—your intent—is the central challenge for the prosecutor. They will use the circumstantial evidence of your words and actions to argue that you did, in fact, intend to pay for a sexual act. Your defense would be to argue that your words did not reflect a genuine intent to enter into a commercial transaction. This is a nuanced defense that depends heavily on the specific facts and your credibility. It’s critical not to try and explain this to the police yourself, as it requires careful legal framing.

Scenario 3: The Passenger

“I drove a friend to a location, and it turns out they were meeting someone for prostitution. The police arrested both of us. I had no idea what my friend was doing. Am I responsible?”

Perspective: You should not be found guilty if you genuinely had no knowledge of the illegal purpose of the trip. The Commonwealth would have to prove that you were “aiding and abetting” the act of prostitution, which requires showing you knew what was happening and took some action to assist in it. Your defense would be centered on your lack of knowledge and intent. Evidence would be key here—did you participate in any of the planning? Are there text messages that show your lack of awareness? A lack of evidence proving your knowing participation is a strong defense.

Frequently Asked Questions (FAQ)

1. Is prostitution a felony in Virginia?

A first-offense prostitution or solicitation charge under § 18.2-346 is a Class 1 misdemeanor. However, a third or subsequent conviction for the same offense can be elevated to a Class 6 felony.

2. Can I get a prostitution charge expunged from my record in Virginia?

No. If you are found guilty of or plead guilty to prostitution in Virginia, the conviction cannot be expunged. The only way to have the charge expunged is if it is dismissed, a nolle prosequi is entered (the prosecutor drops the charge), or you are acquitted (found not guilty).

3. Do I have to appear in court for a prostitution charge?

Yes. A prostitution charge is a Class 1 misdemeanor, which is a jailable offense. You are required to appear personally at all court dates. Failure to appear will result in a warrant for your arrest.

4. What is the difference between prostitution and solicitation?

Legally, in Virginia, there is very little difference. Both are prosecuted under the same statute, § 18.2-346, and carry the same penalties. Prostitution generally refers to the person offering the sexual act, while solicitation refers to the person seeking to purchase the act.

5. Will my name be made public if I am charged?

Yes. Arrest records and court records are matters of public record in Virginia. Your name and the charge against you will be publicly accessible.

6. The police didn’t read me my Miranda rights. Will my case be dismissed?

Not necessarily. Miranda rights are only required if you are (1) in custody and (2) being interrogated. If you volunteered information before being asked questions, or if the police didn’t interrogate you, the Miranda warning may not have been required. If it was required and not given, any statements you made during the custodial interrogation could be suppressed, but it does not automatically lead to a dismissal of the entire case.

7. What is a “nolle prosequi”?

This is a Latin legal term meaning “unwilling to pursue.” It is a formal notice by the Commonwealth’s Attorney that they are dropping the charges. They typically retain the right to bring the charges back within a certain time frame, but it often marks the end of a case. A charge dismissed this way is eligible for expungement.

8. I was just in a “bawdy place” but wasn’t involved in prostitution. Can I be charged?

Yes. Under Virginia Code § 18.2-347, merely entering or remaining in a location known to be used for prostitution, for the purpose of engaging in prostitution, is a Class 1 misdemeanor. The prosecution would need to prove your purpose for being there.

9. How do police stings for prostitution work?

Police use various methods. Common tactics include posting fake ads online on escort or classified websites, responding to ads placed by others, or conducting “street sweeps” in areas known for prostitution. The goal is to get a target to agree to a sex act for money via recorded communication or conversation.

10. Can a text message be used as evidence to convict me?

Absolutely. Text messages are one of the most common forms of evidence used by prosecutors in solicitation cases. They are used to prove the “agreement” element of the crime.

11. What if I am not a U.S. citizen?

A prostitution conviction can have severe immigration consequences. It is often considered a Crime Involving Moral Turpitude (CIMT), which can be grounds for deportation, denial of naturalization, or inability to re-enter the U.S. It is critical to consult with an attorney who understands these implications.

12. Is it better to take a plea deal or go to trial?

This is a strategic decision that depends entirely on the strength of the evidence against you and the nature of the plea offer. A seasoned attorney can assess the risks and benefits of each path and provide you with the information needed to make a sound decision.